R. v. Chen, 2018 BCSC 1996

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Chen, 2018 BCSC 1996 Date: 20180601 Docket: 15479 Registry: Powell River Regina v. Guang Tai Chen Before: The Honourable Mr. Justice Branch Oral Reasons for Judgment Counsel for the Crown appearing by teleconference: J. Langlois-Sadubin Counsel for the Accused: M.P. Klein, Q.C. Place and Dates of Trial: Powell River, B.C. November 7- 8, 2017 April 16, 2018 Place and Date of Judgment: Vancouver, B.C. June 1, 2018 [ 1 ] THE COURT: These are my reasons following a trial in this matter. I. INTRODUCTION [ 2 ] Mr.

Chen is charged with unlawfully possessing a controlled substance in an amount exceeding three kilograms for the purposes of trafficking, and with unlawfully producing a controlled substance under ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“ CDSA ”). [ 3 ] The controlled substance in this case was cannabis. Mr. Chen says he was hired to do limited electrical and carpentry work at what he understood to be a legal medical cannabis operation. There is no dispute that the operation was growing more plants than legally permitted. There is no dispute that Mr.

Chen committed the actus reus of the alleged offences. The question is whether Mr. Chen's alleged mistake relieves him of criminal responsibility. The case largely turns on the often challenging distinction between mistake of law and mistake of fact. II. FACTS [ 4 ] Mr. Chen made a series of admissions pursuant to s. 655 of the Criminal Code of Canada , R.S.C. 1985, c. C-46 which narrowed the scope of the inquiry.

During the course of final argument, his counsel confirmed additional points which further narrowed the scope of the debate. [ 5 ] At the relevant time, there was a police investigation into a property located at 2596 Wilcox Road in Powell River, British Columbia (the “Property”). A search warrant was issued. On September 9, 2015, Powell River RCMP entered the property pursuant to the warrant. Mr. Chen was located on the covered patio of the residence on the Property and detained.

The RCMP discovered 1,422 marihuana plants at the Property, some inside the residence and some outside or in a series of outbuildings. [ 6 ] The parties are agreed that the applicable regulations governing the Property at the relevant time were the Marihuana Medical Access Regulations , SOR/2001-227 (the “ MMAR ”). Over the years there were various licences issued for this Property. [ 7 ] It is admitted that, at the relevant time, there were two valid licences applicable to the Property. However, these licences only allowed 122 indoor plants. [ 8 ] There is a dispute about the extent of Mr.

Chen's involvement in the operation. It is agreed that he was not the registered owner of the Property and he was not one of the MMAR licence holders. [ 9 ] Mr. Chen's evidence is that he attended at the Property on about five occasions over the course of 2015 to provide contracting assistance. He testified that there was a gap between May and September when he did no work at the Property. He was hired by a Mr. Su. He says that he was simply retained to perform certain electrical and carpentry work. As noted however, he does not contest that this

limited assistance would be sufficient to fulfil the actus reus of aiding and abetting the operation. [10] Mr. Chen testified that he at no time had anything to do with tending the plants or disposing of the final product. [11] Mr. Chen says Mr. Su advised him at the outset that the cannabis being produced at the property was being produced legally.Mr. Su showed a license to him. However, Mr. Chen's English is poor and he did not review the documents in any detail. [12] On the day of his discovery at the property, Mr.

Chen says that he was there solely for the purpose of repairing some damage tothe roof and other structures that resulted from a storm. There were photographs showing some roof damage. [13] The Crown suggested that Mr. Chen's role in the operation went deeper, and that he was actually a knowing party to theoffence, rather than simply unknowingly aiding and abetting the operation. The Crown bases this submission primarily on the followingevidence, which was not disputed:

a) an overhead picture was taken of a vehicle similar to Mr. Chen's during the month of August, when he testified he was not atthe Property;

b) Mr. Chen had some clothes at the Property;

c) there was a bank statement with Mr. Chen’s name and the Property's address found at the Property; and

d) Mr. Chen was discovered alone at the Property. [14] I address this evidence in further detail below. III. BURDEN OF PROOF [15] If Crown counsel does not satisfy the Court beyond a reasonable doubt of each of the essential elements, I must find Mr. Chennot guilty. In R. v. Paterson, 2017 BCSC 536, the court recently framed the burden of proof as follows: [114] Though the Crown must prove each element of an offence beyond a reasonable doubt, that standard of proof does not apply toeach piece of evidence in isolation. In R. v.

Morin, (SCC), [1988] 2 S.C.R. 345 at para. 49, Sopinka J. wrote, “proofbeyond a reasonable doubt does not apply to the individual items of evidence or the separate pieces of evidence in the case, but to thetotal body of evidence upon which the Crown relies to prove guilt”; see also R. v. B. (G.), (SCC), [1990] 2 S.C.R. 57 atpara. 36. Justice Cromwell restated the aforesaid principle more recently in R. v.

H.(J.M.), 2011 SCC 45 , [2011] 3 S.C.R.197 at para. 31, where he wrote, “it is an error of law to subject individual pieces of evidence to the standard of proof beyond areasonable doubt; the evidence must be looked at as a whole”. IV. ISSUES [16] As noted, there are many elements of the offences that are not in dispute. There is no dispute that the substance found at theProperty was cannabis. There is no dispute that Mr. Chen knew that the substance being grown at the Property was cannabis. Mostimportantly, there is no dispute that Mr.

Chen performed the actus reus of the two offences for which he is charged by aiding andabetting the operation through his contracting work. [17] As such, the remaining issue is whether the Crown has established beyond a reasonable doubt that Mr. Chen had the mens reanecessary for the offences. [18] This inquiry can be broken down into two issues:

a) Did Mr. Chen hold an honest belief that the production of the cannabis at the Property was legal, such that he was operating undera mistake?

b) If so, was this honest belief a mistake of fact that negates the necessary mens rea finding, or a mistake of law that does not relievehim from responsibility? V. ANALYSIS

a) Honest Belief [19] The first issue raises a question of credibility. Do I believe Mr. Chen's evidence that he honestly believed that the cannabisproduction at the Property was part of a licensed operation? [20] Given that Mr. Chen testified, I must have regard to R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, where the courtmade the following comments regarding the proper approach to assessing credibility, at 757-758: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue.The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, thetrial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if

they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. Atrial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidencewhich you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Emphasis in original.] [21] Mr. Chen's English was limited and he testified that he did not read English well. He testified through an interpreter. [22] I find that Mr.

Chen's evidence was generally credible as to his belief that the property was a legal "grow op", and that he wasnot a knowing party to an illegal operation. Mr. Chen carefully considered each question put to him and was generally helpful with hisanswers to both sides. The cross-examination was limited, and did not identify any glaring misrepresentations or inconsistencies. [23] However, as noted above, the Crown argues that there are a number of pieces of evidence other than his testimony thatundermine the conclusion that Mr.

Chen had an honest belief that the operations were legal. [24] As to the presence of his clothes on the site, Mr. Chen did not deny sleeping at the Property, given that he had to come fromVancouver. Having twice made the trip to Powell River from Vancouver for the hearing of this matter, I can understand how someonewould not want to do so purely as a day trip. [25] In regard to the August photograph of a vehicle, the high overhead shot showing a similar vehicle to Mr. Chen's is insufficientevidence to tie Mr. Chen to the location on the day in question. Furthermore, even if the vehicle belonged to Mr.

Chen, that oneinconsistency on a single day in his timeline is not enough to establish beyond a reasonable doubt that Mr. Chen was a knowingparticipant in illegal conduct. [26] I also decline to draw an adverse inference from the fact that Mr. Chen was found at the Property alone. Contractors can be leftalone without an inference being drawn that they have control of a property or knowledge of an illegal activity taking place at a property.Furthermore, there was evidence of other persons living at the Property who could have been the true parties in control. [27] Mr.

Chen's evidence as to the limited extent of his involvement with the Property was partially corroborated by Mr. Tzung ChiSun. Mr. Sun confirmed that Mr. Chen lived with him in Vancouver during the relevant months. He also confirmed that Mr. Chen wasonly ever absent for a couple of days at a time. [28] As noted, Mr. Chen's testimony regarding the reasons for his presence at the Property on the day of his arrest is partiallycorroborated by the photographs that show damage to the roof of certain buildings. This damage would explain why Mr.

Chen waspresent to do work. [29] The Crown argued that the absence of the individuals named on the licence should have been a red flag for Mr. Chen. However,given the limited amount of time that he was present for his contractor work, I cannot draw an adverse inference from the fact that henever met the licensees, and rather only their apparent agent in authority, Mr. Su. [30] I note that there is no evidence that the plants were being hidden in any way, or that filters were being used, which mightreasonably have put Mr.

Chen on higher alert as to the legality of the operation. [31] There was only one aspect of Mr. Chen's evidence that troubled me. A bank statement in his name was found at the Propertywhich had the address for the Property. Mr. Chen's explanation was that he had the statement sent to Mr. Su in order to provide Mr. Suwith a receipt for the deposit of certain cash paid to Mr. Chen for his contracting work. This seems like an inordinately complicatedmanner in which to provide a receipt.

Furthermore, the bank statement includes an opening balance and a series of other transactions thatgo beyond what is necessary to provide a receipt. [32] However, viewed from the other direction, the bank statement is also very weak evidence of knowledge of illegal activity at theProperty. It is at least possible that the bank misunderstood a request by Mr. Chen that a specific monthly statement simply be copied toMr. Su's address as evidence of deposits, but that the bank mistakenly changed the address on the account generally. I do not find thatthis piece of evidence is sufficient to undermine Mr.

Chen's credibility. [33] I conclude that in all the circumstances it was not unreasonable for Mr. Chen to hold the belief that this was a legal operation. Itwould be unreasonable to require Mr. Chen, hired simply to provide limited contracting assistance, to investigate and question thelegality of the licence presented to him by the person in control of the Property. [34] The reasonableness of this belief, like other factors personal to the defendant, weigh in the assessment of whether the mistakenbelief was genuinely held. However, it is not a precondition to its validity: Pappajohn v.

The Queen, (SCC), [1980] 2S.C.R. 120 at 155-156, Dickson J., (as he then was) dissenting; R. v. Bulmer, (SCC), [1987] 1 S.C.R. 782 at 792. [35] In this case, I find that Mr. Chen's belief that he was doing contractor work at a legal operation was reasonable, particularlygiven the limited scope of his retainer and his language limitations. I find that he could reasonably rely on the representation of the

person in authority on the site. The reasonableness of this belief supports a finding that it was honestly held. [36] The Crown criticized Mr. Chen for not calling Health Canada to confirm the legality of the site, or for not taking the licencesfrom the Property to have them reviewed by someone with superior English or understanding of the medical marihuana regime. I findthat this is too much to expect of an independent contractor carpenter/electrician. [37] As such, I conclude that the Crown has not established that Mr. Chen was aware that illegal conduct was taking place at theProperty.

I find that his belief as to the legality of the operation was honestly held. However, that does not end the inquiry. The Crownasserts, and Mr. Chen accepts, that if Mr. Chen's mistake was one of law rather than fact, he would still be found to have the requisitemens rea to commit the offence.

b) Mistake of Fact or Mistake of Law [38] In Pappajohn, at 148, Dickson J. held that mistake can negate mens rea: Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with whichhe is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. Itavails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of anoffence.

Mistake is a defence though, in the sense that it is raised as an issue by an accused. [39] He held further at 152 that: … If the jury finds that mistake, whether reasonable or unreasonable, there should be no conviction. If, upon the entire record, there isevidence of mistake to cast a reasonable doubt upon the existence of a criminal mind, then the prosecution has failed to make its case. [40] However, the defence of mistake is restricted, in that it does not extend to mistakes of law.

Pursuant to s. 19 of the CriminalCode, “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence”. [41] The Crown accepts that if the Court concludes that Mr. Chen's error is properly characterized as an honest mistake of fact, hismistake is a valid defence. But the Crown takes the position that if there was a mistake, it was a mistake of law. [42] The Supreme Court of Canada in R. v.

Forster, (SCC), [1992] 1 S.C.R. 339 at 346 stated the followingregarding the effect of a mistake of law: It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions doesnot furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. TheQueen, (SCC), [1980] 2 S.C.R. 356. This Court recently reaffirmed in R. v.

Docherty, (SCC), [1989] 2S.C.R. 941, at p. 960, the principle that knowledge that one's actions are contrary to the law is not a component of the mens rea for anoffence, and consequently does not operate as a defence. [43] In R. v. Stucky, 2009 ONCA 151, the court stated: [110] In R. v. Latouche (2000), (CMAC), 190 D.L.R. (4th) 73 (Can. Ct. Martial App. Ct.), at para. 35, EwaschukJ.A., citing R. v.

Jones, (SCC), [1991] 3 S.C.R. 110, described the distinction between a mistake of fact and a mistake oflaw in this way: As a general rule, a mistake of fact, which includes ignorance of fact, exists when an accused is mistaken in his belief that certain factsexist when they do not, or that certain facts do not exist when they do. Ignorance of fact exists when an accused has no knowledge of amatter and no actual belief or suspicion as to the true state of the matter.

By contrast, a mistake of law exists when the mistake relates notto the actual facts but rather to their legal effect. [44] I note that the court in Stucky included ignorance of facts within its definition of “mistake of fact”. Here, Mr. Chen says he wasignorant of the fact that the property was producing cannabis beyond the scope of its licence. [45] In R. v. Davidson (1971), (BC CA), 3 C.C.C. (2d) 509 at 515-516 (B.C.C.A.), the majority of the Court ofAppeal found that where a mistake is one of mixed law and fact, the mistake should be treated as one of fact: see also R. v.

Manuel, 2008BCCA 143 at para. 16, leave to appeal ref’d [2008] S.C.C.A. No. 265. [46] The framework provided in R. v. Starosielski, 2001 ABPC 208 at para. 134, also provides a helpful approach to this issue: [134] In order to prove a defence of reasonable mistake of fact the following elements are required: 1. There is a set of facts upon which the defendant acted. 2. These facts reach to the external elements of the offence. 3. The manner in which the defendant formulated and accepted this set of facts was reasonable. 4. The defendant acted reasonably based upon these facts. 5.

The assumed facts cannot be the result of merely an

interpretation of law. 6. The defendant cannot have been seen to be wilfully blind to the law.

[47] The Crown offered three cases that found guilt based on mistake of law. However, I conclude that each is distinguishable.

a) R. v. MacDonald, 2014 SCC 3: The accused was found guilty of possessing a restricted firearm without a licence because hisfirearm permit only permitted him to possess his weapon in Alberta, not Nova Scotia. However, in that case, the accused was notmistaken as to the fact of whether he was in Alberta or Nova Scotia. Rather, he was mistaken in his legal

interpretation of the terms ofhis own licence. Specifically, he (erroneously) believed that his licence gave him the legal right to take the firearm outside his homejurisdiction. This is accurately characterized as a mistake of law.

b) R. v. Allaby, 2017 SKCA 25: The accused was found guilty of violating his probation order requiring him not to attend atcommunity centres where persons under 16 years old could reasonably be expected to be present. His defence was that he did notunderstand that a library was a "community centre". Again, the error was his own legal

interpretation of a defined term in a court orderapplicable to him. It could not be said to be a mistake of fact.

c) R. v. Legrande, 2014 ABCA 192, leave to appeal ref’d [2014] S.C.C.A. No. 367: The accused were found guilty of hunting in awildlife sanctuary. As summarized by the court at para. 12, “the appellants argue that they were mistaken about the scope of theirauthority to hunt . . . They thought that they were allowed to hunt on any unoccupied Crown land”. Again, this error clearly related totheir own

interpretation of the applicable law. A better parallel to the present case may have existed if the accused had been advised by alocal farmer that they were outside the wildlife sanctuary, but they were in fact inside the protected area. See, for example, the contrast inoutcomes between R. v. Baker, [1983] 4 C.N.L.R. 73 (B.C. Co. Ct.), where the accused who thought he was fishing within theboundaries of a legal area was found not guilty, and R. v. Bob, [1984] 2 C.N.L.R. 107 (B.C. Co.

Ct.), where the accused, who wasignorant as to the actual existence of a legal prohibition on fishing, was found guilty. [48] The court in Legrande cites a decision which has greater parallel to the present facts, in which the court characterized themistake as one of fact: [13] The appellants rely on R. v. Chapin, (SCC), [1979] 2 SCR 121 in which the appellant was acquitted of huntingin close proximity to bait, because she did not realize there was bait in the area. That was found to be a mistake of fact, but the decision isdistinguishable.

If Chapin had known there was bait in the area, but did not know that hunting near bait was illegal, she would have beenoperating under a mistake of law. … [49] To perhaps torture an analogy, the “bait” here was the presence and location of plants on the Property beyond the legalrestriction, the fact of which Mr. Chen was ignorant. [50] The court provided the parties with a further decision that requires careful review and consideration. The case of R. v. Zheng,2015 ONCJ 30 undoubtedly bears parallels to the present case.

In Zheng, the accused was a security guard employed at a marihuanagrowing facility licensed under the MMAR. The guard heard burglars breaking into the building. He called 911. In an ironic turn ofevents, after arresting the burglars, the police also arrested the security guard. The basis for the arrest was that the guard was not namedon the licence and that there were more plants being produced than allowed for on the licence. [51] The analysis in Zheng largely focused on whether the accused, despite not being named on the licence, could stand in the shoesof the licensee.

The court accepted that the accused honestly believed that the licence allowed him to stand in those shoes as anemployee. However, the court in Zheng concluded that the MMAR do not allow the holder of a production licence to delegate theirauthorization to produce, possess, and keep marihuana to employees. The court concluded that this error of

interpretation by the accusedwas a mistake of law: [52] The defendant concedes the actus reus of the offences with which he is charged: He was a knowing party to the production ofthe marihuana found at the 81 Mack grow op. He was also a party to its possession for, indisputably, the purpose of “trafficking” (asdefined in s. 2(1) of the CDSA).

He says, however, that based on the production licences and related documentation at the grow op andinformation received from his employers, he honestly believed the production and related possession of marihuana at the 81 Mack site(and, not incidentally, his limited participation in such enterprise) was officially authorized and that any mistake he may have suffered inthis regard was one of fact or mixed fact and law that negatives the element of moral blameworthiness and thus exempts him fromcriminal culpability.

In response, the Crown’s first position is that the defendant was not mistaken; he knew full well that the vastmajority of the marihuana production at 81 Mack was outside the scope of any licensure and hid behind those licences in fraudulentlyadvancing a defence of mistake. In the alternative, the Crown submits the defendant, if honestly mistaken, was not mistaken as to thefacts but as to their meaning or consequence in law. In either event, says the Crown, the defendant is guilty as charged. [53] At the risk of abbreviating the suspense, I find myself in agreement with the Crown’s alternative position.

To be more precise, Iam not persuaded that the defendant did not honestly if mistakenly believe that the marihuana cultivation at the 81 Mack grow op wasauthorized by production licences issued by Health Canada. However, I find that this belief amounts to a mistake of law and, accordingly,does not exculpate the defendant from responsibility for the two offences before me. … [61] The difficulty for the defendant is that his understanding of the compass of exemption extended by the licences was not onlymistaken but, as said in R. v.

Stucky, supra, amounts to that mistake of law that occurs “when the mistake is not as to the actual facts butrather as to their legal relevance, consequence or significance”. There is no doubt that there were MMAR production licences on the wallat the grow op, but their effect or meaning was very different than the broad scope of exemption mistakenly ascribed to them by thedefendant. Contrary to his apparent belief, DPLs are issued to persons not places.

They authorize (or did, when the MMAR was still ineffect) named persons to produce marihuana, and only at a particularized location, but they do not afford a freestanding get-out-of-jail-free card to anyone assisting in the cultivation of marihuana within the confines of the specified address. The defendant’s mistaken beliefin this regard was one of law. So too was his apparent ignorance that he could not possess or aid and abet others (even those holdingDPLs) to possess or produce marihuana unless he himself was issued an ATP. [Emphasis added.]

[52] More germane to the present case are the court in Zheng's much more limited comments regarding the accused's belief that themarihuana production at the site was in accordance with the licence: [61] …The defendant’s mistaken belief that the licences’ expiry dates and maximal plant limits were of little consequence againresounds in law, not fact. And the assurances of legality he received from Vincent, while perhaps personally persuasive, are of noexculpatory value in this context.

The Canadian authorities have consistently held that even the mistaken advice of a lawyer, honestlytendered and believed, is of legal rather than factual character. As succinctly put in R. v.

Stucky, supra, at para. 109, “there can be nodoubt that reliance on a lawyer’s advice is a mistake of law which affords no defence to the commission of an offence”. [62] The defendant’s misapprehension is materially no different than that of a motorist who argues on arrest that he mistakenlybelieved that his G1 licence authorized him to drive on a 400-series highway after midnight and without a qualified passenger.Irrespective of the source of his misunderstanding (unless resulting from officially induced error) and no matter how sincerely held, thedriver’s misapprehension (indeed, any of the three) is not a mistake of fact but law.

The defendant’s mistake is of the same analyticalcharacter and, accordingly, does not afford him a defence. [53] The reasoning in Zheng has not been adopted in British Columbia. It was noted in passing when embedded in a quote fromanother Ontario decision in R. v. McGee, 2016 BCSC 2175 at para. 134, but only in the context of assessing the constitutionality of theminimum sentencing regime relating to the production of marihuana. [54] In any event, I find that the analysis in Zheng is distinguishable.

The discussion of mistake of law or fact in Zheng wasprimarily focused on a different issue – that being whether the accused employee was mistaken in his belief that he was entitled to workunder the scope of the employer's licence. This debate was more relevant in Zheng, where the security guard was recognized as anemployee of the licensee and had admittedly undertaken some work on the marihuana plants themselves: Zheng at para. 32. As a result,his ability to come within the scope of the protection granted to his employer was front and centre. [55] Here, I conclude that Mr.

Chen was simply an independent contractor brought on site to perform limited services on limiteddays. His defence was not that he could stand in the shoes of the licensee. Obviously he could not. Rather, the relevant facts here werethat he was told as a fact by the person controlling and operating the site that the operation was licensed, and he was shown a licence. Hedid not seek to stand in the shoes of the licensee.

He simply sought enough factual information to comfort him so that he could fulfil hislimited engagement. [56] To suggest, as the Crown did in this case, that an independent contractor should take the licence and make relevant legalinquiries of Health Canada as to the proper scope of that licence is unreasonable. Barring other evidence putting the contractor on alert,such that his honest belief is undermined at the first stage of the analysis, an independent contractor should be able to rely on the basicfacts presented to him when he is asked to perform limited work.

He should not be required to make detailed legal inquiries. [57] The Crown admitted that there must be some limit to the scope of persons who could come within the ambit of the problemillustrated in Zheng. For example, the Crown agreed that the law should not capture the lumber yard owner who is erroneously advisedthat the lumber being purchased would be used for a licensed grow operation. I see little principled reason to distinguish between such anindividual and Mr.

Chen on the facts of this case. [58] The further one extends from the actual party on a licence, who is more clearly responsible for knowing and appreciating itslegal terms, and the employees of such an operation, who necessarily have a greater interest in the legality of the operations of theiremployer, the more likely a mistake as to the existence of a valid licence is properly characterized as one of fact rather than law. [59] In R. v. Darquea (1979), (ON CA), 47 C.C.C. (2d) 567 at 569 (Ont.

C.A.), the Ontario Court of Appealstated the following in overturning a trafficking conviction of certain employees on consent of the Crown: We are all of the view that a genuine belief on the part of the appellants that the laboratory by which they were employed was authorizedto manufacture the controlled drug, which is the subject of the charge, constitutes a defence. In the case of true crimes a genuine belief incircumstances, which, if true, would make the act with which the accused is charged an innocent act is a good defence.

The learned trialjudge appeared to be of the view that the belief relied upon by the appellants was a belief as to a matter of law, and not a belief as to amatter of fact, and hence was not a defence. We are all of the view that a genuine belief that the laboratory was licensed under the Actand the Regulations to manufacture the controlled drug is a belief as to a matter of fact, and constitutes a defence to the charge. [Emphasis added.] [60] From the perspective of an independent contractor, at most they may need to know whether there is a licence. From theirlimited perspective, this is a simple factual inquiry.

It would be extremely artificial and unrealistic to characterize their inquiry as to thesimple existence of a licence as conducting a (mistaken) legal inquiry or receiving (mistaken) legal advice. [61] Mr. Chen also argues that, to the extent Zheng can be read as standing for a broader proposition that only the licence holder canhave anything to do with a grow operation, the decision is wrong, as such

interpretation would lead to absurd and even dangerous results.Mr. Chen put the problem this way: 28. … Production of marijuana often requires intricate and at times sophisticated electrical wiring. 29. If the MMARs are interpreted narrowly, it means that the licensee must be solely responsible for the wiring.

That being the case, thecitizenry better hope that the licensee is an electrician or [someone who] possesses some expertise in electrical wiring because he cannotengage someone to do that on his behalf or even have someone give him advice about the wiring lest that person be liable to a criminalcharge of aiding and abetting production of marijuana. 30. Other absurdities would include the licensee getting ill and not being able to look after the production site. Does that mean thelicensee must abandon the site and would therefore be unable to seek assistance while dealing with illness?

[62] As to the need to avoid absurd results, Mr. Chen relies on Rizzo & Rizzo Shoes, (SCC), [1998] 1 S.C.R. 27 atparas. 21 to 27, and Waugh v. Pedneault (Nos. 2 and 3), (BC CA), [1949] 1 W.W.R. 14 at paras. 3 and 27. [63] Further, the approach in Zheng is difficult to square with the British Columbia Provincial Court's approach in R. v. Le (29October 2015), Surrey 198905-2 (B.C.P.C.), which held that the practical realities of operating a “grow op” should be reasonably readinto the regulation. In that case, an investigation led to a search warrant being executed at a residence.

In the course of that search, policelocated a rental van with 139 marihuana plants growing in pots at the back of the van. Mr. Le had a licence to grow 146 plants, but atanother location. He indicated that he only went to the residence to obtain plants he was told would be available for free. It was hisintention to simply transport the plants back to his legal production site. [64] The court found that Mr. Thai helped move the plants from the basement to the garage for Mr. Le. The court found both Mr. Leand, more notably for present purposes, Mr.

Thai, not guilty, stating as follows: [251] The MMARs do not explicitly authorize a person to possess marijuana seeds, plants, or seedlings for the purpose of production.However, it is implicit in the authorization to produce that a person with a license to produce must be able to come into the lawfulpossession of seeds and/or plants for the purpose of producing marijuana, which they are authorized to do at a specific location. Implicitwithin that must be the authority to transport seeds and/or plants. [252] … Therefore, I find, in the circumstances before me, that Mr.

Le believed, by virtue of his license and the MMARs, that he waslawfully entitled to possess and transport the plants from the Sundale Residence to the Finlayson Arm Road production site to give effectto his production license. In my view, the surrounding circumstances of his possession, as detailed above, support this finding.Accordingly, I do not find that the Crown has established, beyond a reasonable doubt, that Mr. Le had the requisite mens rea tounlawfully possess the 139 marijuana plants.

Rather, he believed he had lawful authority to transport them to his production site, and ifthat lawful authority is mistaken, it was a mistake of fact. … [256] … In my view, based on the inferences I have drawn here, Mr. Thai intended to aid Mr. Le to come in to possession of themarijuana plants for the purpose of Mr. Le transporting them to his licensed production site. I have found that Mr.

Le mistakenly believedhe could do so, or was officially induced to do same, on the basis of the lack of any clear wording in the MMARs about how licensedproducers can lawfully come into possession of marijuana seeds or plants. He therefore lacked the requisite mens rea to commit theoffence of unlawful possession of marijuana. It follows, then, that Mr.

Thai, on the body of evidence before me, is entitled to beacquitted for the same reason, in that he was aiding a person who believed that he was lawfully entitled to possess marijuana, or wasofficially induced by operation of the MMARs, for the purpose of transporting it to his lawful production site. [65] One can see how the approach in Le would allow greater protection from criminal liability for the necessary work ofindependent contractors than would the approach in Zheng. Le suggests that independent contractors can perform work for a legaloperation without necessarily triggering legal liability.

This in turn opens up the possibility that an independent contractor may beoperating under a mistake of fact that he is entitled to perform such work, unknowingly, for an illegal operation. [66] Of even greater moment and assistance is the more recent statement from the Ontario Court of Appeal in R. v. Johnson, 2016ONCA 654, where the court stated: [1] … The appellant was convicted of unlawfully producing marijuana and the possession of marijuana for the purposes oftrafficking. He was found by the police in a residence located at Thirty Road North in Beamsville, Ontario.

The residence was being usedas a marijuana grow-op. When he was arrested, the appellant immediately told the police that his boss had a licence to produce marijuanaat that residence. He was there to meet a water truck, presumably to water the plants. In fact, although his boss had a licence for anothernearby location, he did not have a licence to grow marijuana at Thirty Road North. [2] The appellant did not testify.

He did, however, rely on his statements to the police to support a defence at trial that he honestlybelieved that his boss had a licence making the grow-op a lawful operation. [3] On appeal, Crown counsel submits that there were two distinct bases upon which the appellant could be convicted of the twocharges. First, on the basis that he assisted his boss in cultivating the marijuana.

According to the Crown, the appellant’s statement thathe believed his boss had a licence to grow marijuana at the residence could not, standing alone, give “an air of reality” to the claim of anhonest belief that the grow-op was lawful. Second, the Crown submits that as the appellant was involved in the cultivation of themarijuana, he had to be personally licensed under the applicable legislation and was, by his own admission, not personally licensed. [4] Whatever the merits of the second basis put forward by the Crown on appeal, it was not the basis upon which the case wasdecided at trial.

The trial judge convicted on the basis that the appellant aided and abetted his boss in the cultivation of the marijuana.The trial judge focused not on whether the appellant was licensed to cultivate marijuana, but rather on his belief that his boss waslicensed to cultivate marijuana at the residence. [5] We are satisfied that the trial judge erred in law in holding that the defence had an onus to establish the honest belief defence.The trial judge found that the defence could not be made out by the appellant unless he had seen a licence.

In our view, the trial judgewas wrong to place any onus on the appellant and she was wrong to hold that the defence could only be made out by evidence that theappellant had seen a licence. The Crown was required to prove beyond a reasonable doubt that the appellant knew his boss did not have alicence. This was an essential finding before the appellant could be found liable as an aider and abetter.

The trial judge was obliged toconsider the appellant’s statement to the police just as he was obliged to consider the other evidence, including the evidence that his bosshad a licence to grow at another residence and had applied for a licence at the Thirty Road North residence. [6] In our view, on a consideration of the totality of the evidence viewed through the lens of the Crown’s burden of proof, the trialjudge may or may not have rejected the honest belief defence. We cannot say. There must be a new trial on both charges.

[Emphasis added.] [ 67 ] I agree with the statement from Johnson that it is necessary for the Crown to prove beyond a reasonable doubt that Mr. Chen knew that the person controlling the operations on the property did not have a licence. [ 68 ] The Crown seeks to draw a distinction as to Mr. Chen's situation, stating that Mr. Chen knew there was a licence, but that what he did not appreciate was the extent of that licence. I find that this is an inappropriate distinction. Knowing there was a licence covering at least the base operations at the property makes Mr.

Chen less blameworthy, not more blameworthy. [ 69 ] The Crown's proposed distinction is also not supported by the decision in R. v. Morrell , 2017 ONSC 5606 , in which the court struck down the minimum sentence provided for in s. 7(2)(b)(iii) of the CDSA : [33] If a producer unintentionally has more plants than authorized, it would appear that is a mistake of fact for which there would be no conviction: see R. v. Johnson , 2016 ONCA 654 , at para. 5 , and R. v.

Boulton , 2016 ONSC 2979 , at paras. 24-26 . [ 70 ] If this statement about producer liability is correct, where the producer would clearly appreciate the existence of the licence, it is extremely difficult to see why a far less involved contractor, such as Mr. Chen, should be held responsible. [ 71 ] Interestingly, in R. v. Pham , 2016 ONSC 5312 , in which the constitutionality of the mandatory minimum sentence under s. 7(2) (b)(

v) of the CDSA was successfully challenged, the Crown effectively argued that Zheng was wrongly decided, and that the situation in Zheng should have been treated as a mistake of fact rather than a mistake of law: [43] Mr. De Sa, on behalf of the Crown, submitted that the mistake of law made by the accused in cases like Zheng and Jiang , and in the hypothetical relied on by Durno J. in Vu , are actually mistakes of fact.

Accordingly, they should give rise to valid defences of lack of mens rea at trial. [ 72 ] The court in Pham suggested that the outcome in Zheng was indicative of the harsh outcomes supporting the striking down of the mandatory minimum, summarizing its position on the “mistake of fact versus mistake of law” question as follows: [47] In my view, MacDonald and Molis hold that a mistake as to "the conditions of his or her authorization or license " or a mistake as to the "meaning, scope or application" of a regulation concerning the production of drugs, is a mistake of law. [Emphasis added]. [ 73 ] In this case, it was not Mr.

Chen's

interpretation of his own authorization or licence that was in issue, and there is no suggestion that Mr. Chen was purporting to interpret the meaning of any regulation in deciding to go ahead and perform his contracted work. [ 74 ] Pham was one of the three cases appealed and decided together in R. v. Vu , 2018 ONCA 436 , on which I invited supplementary submissions. In the Vu decision, the appeal court confirmed that the minimum sentencing provisions in ss. 7(2) (b)(iii), (v), (vi), and 7(3) (

c) of the CDSA should be struck down. As part of that exercise, the court considered certain reasonable hypotheticals. In doing so, the court notably did not question the result in Johnson , on which this Court has placed substantial weight, but rather drew the same distinction that we have drawn here, i.e., between those simply aiding the licensee and the licensee himself: [65] Turning to the Crown’s second argument, I find it unnecessary to engage in the mistake of fact/mistake of law debate concerning the Pham sentencing judge’s reasonable hypotheticals.

As I have said, so long as there is one reasonable hypothetical where the imposition of the mandatory minimum would be grossly disproportionate, then the mandatory minimum provision will offend s. 12. In my view, three cases put to this court illustrate that the reach of s. 7(2) (b)(

v) is grossly disproportionate in some cases. [66] The first such case is this court’s recent decision in Johnson – a case relied on by the Crown, which illustrates the potential for a grossly disproportionate sentence in two ways. Mr. Johnson was charged with unauthorized production of marijuana at a friend’s grow operation. His friend had a license to produce marijuana at one location, and was in the process of applying for a license to produce at a second location (the location where Mr. Johnson was found). In sending the matter back for a new trial, this court held that Mr.

Johnson could have a mistake of fact defence to the charge given that the theory advanced at trial was that Mr. Johnson was liable as an aider. [67] However, a person such as Mr. Johnson’s friend would be in a different position if he was mistaken as to the location where he was authorized to produce marijuana. Applying Nur and MacDonald , a mistake of fact defence would not be available to Mr. Johnson’s friend, the actual licensee, even if he was honestly mistaken as to the terms or status of his license and, as a result of the mistake, produced at an unauthorized location.

Both Nur and MacDonald make it clear that a mistake as to the terms of one’s license is a mistake of law, not a mistake of fact. [Emphasis added.] [ 75 ] I note that the Ontario Court of Appeal in Vu referred to Zheng , but did not take the opportunity to opine on whether or not it was correctly decided: para. 61. [ 76 ] Here, I need not decide whether Zheng is wrongly decided because:

a) the decision is not binding upon me, being from another province and a lower court, and

b) I have found that Zheng is distinguishable. [ 77 ] However, in my opinion, the B.C. Provincial Court's approach in Le is more consistent with the legal principles discussed above, including those from more recent and superior court decisions in Ontario. [ 78 ] In

summary, I am left with a reasonable doubt as to whether Mr. Chen had the mens rea required for the offence. Specifically, I

find that:

a) Mr. Chen had an honestly held belief as to the legality of the operation being undertaken on the Property; and

b) His error in this respect is properly characterized as a mistake of fact or of mixed law and fact, given Mr. Chen's narrow role in respect of the site conditions or operations, and his minimal level of contact with the licensing regime. VI. CONCLUSION [ 79 ] For the reasons expressed above, I find Mr. Chen not guilty on both counts. “Branch J.” _________________________________ The Honourable Mr. Justice Branch