R. v. Siddall Date:, 2011 BCPC 314

Citation: R. v. Siddall Date: 20110503 2011 BCPC 0314 File No: 73020 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CORRIE WILLIAM SIDDALL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: A. Turton Counsel for the Defendant: J. Dunne Place of Hearing: Abbotsford , B.C. Date of Hearing: May 2, 3, 2011 Date of Judgment: May 3, 2011 [ 1 ] THE COURT : Corrie William Siddall is charged in Abbotsford court file 73020 with three offences.

Count 1 charges him with the offence of production of marihuana, Count 2 charges him with the offence of possession of marihuana for the purposes of trafficking, and Count 3 charges him with the theft of electricity. The offence dates alleged are between September 1st, 2007 and September 14th of 2009, so these are alleged to be continuing offences in excess of a two-year period. [ 2 ] There is no issue here that during those relevant periods somebody was growing marihuana on property that was owned by Mr. Siddall, and in particular in an outbuilding.

There is no issue but that there was a marihuana grow operation, that it was growing in sufficient quantity that it was for the purposes of trafficking, and there is also no issue, in my view, that somebody was supporting that marihuana grow operation by fraudulently diverting electricity from BC Hydro by means of what is referred to as a bypass. [ 3 ] The issue in this case is whether or not the Crown has proven beyond a reasonable doubt that Mr. Siddall was the person who either committed each of those offences or was in some fashion a party to their commission.

And I keep in mind that in a criminal trial it is not an issue of which side I believe, but the issue is whether or not the Crown has proven the offences charged beyond a reasonable doubt. I have to consider whether, on the total body of evidence viewed as a whole, the Crown has proven each essential element of the offence beyond a reasonable doubt. [ 4 ] I am also mindful in this case that Mr. Siddall has taken the stand, that he has given evidence under affirmation which, if

accepted, would afford him a defence to each of these charges, and again, I have to weigh that evidence in determining my assessment of whether or not the Crown has proven the elements of each offence beyond a reasonable doubt. [ 5 ] Count 1 charges the offence of production, and production, while not a precise definition, production involves some aspect of hands-on assistance in the growing of the crop, and there is a more complete definition in the Controlled Drugs and Substances Act and in the case law, but essentially an individual who simply owns property in which a marihuana grow operation is being tended to by someone else is not guilty of the offence of production as a principal by virtue of just simply mere ownership of the land; there has to be something more in the means of hands-on involvement. [ 6 ] Count 2, the offence of possession under the Controlled Drugs and Substances Act has been again precisely defined.

It is defined in s. 4(3) of the Criminal Code and the Supreme Court of Canada, I think in a case called Terrence , defined possession as having the elements of knowledge and control. And again, it is incumbent on the Crown to show beyond a reasonable doubt, firstly, that Mr. Siddall knew that marihuana was being grown on his property, and secondly, that he took some steps to control the marihuana that was being grown.

He could, of course, be guilty as a party to the offence if the persons growing the marihuana did so with his assistance and with his encouragement, and again, it is incumbent on the Crown to prove those elements beyond a reasonable doubt. [ 7 ] And finally, the offence of theft as set out in Count 3, it is incumbent on the Crown to show beyond a reasonable doubt that Mr.

Siddall either was the person who caused the electricity to be diverted, or else in some fashion that he aided and abetted or encouraged or was somehow a party to that theft. [ 8 ] In this case the issue really comes down to whether or not there is evidence beyond a reasonable doubt of Mr. Siddall's involvement in each of these offences.

The Crown takes the position that I can reasonably infer that he was involved in these offences by virtue of the fact that this is a large marihuana grow operation, he is the registered owner of the property, he is the hydro subscriber, he is the one essentially in control of the premises. And I think the Crown is essentially asking me to infer from the facts in evidence that Mr.

Siddall must have known what was going on, that the presence of this grow operation ought to have been obvious to anyone, even for a brief period of time, living in that residence. [ 9 ] The defence takes the position that for much of the offence period Mr. Siddall was the owner but not the occupant of the premises. The defence disputes the Crown's assertion that the presence of this grow operation must have been obvious, the fact that it is being grown in a separate building, that that building is 300 meters from the residence, a considerable distance.

I think we heard evidence as well that it was not immediately visible from the house, that there were no windows in the house that would face that, that there was a line of trees and so forth. [ 10 ] Mr. Dunne also points out that there is no evidence that links Mr. Siddall to the grow operation, that there is no evidence specifically of any fingerprints, of any documents inside the building where the marihuana was being grown.

There was also no evidence inside the house that would suggest the occupant of the house had any knowledge of the marihuana being grown, in other words there is no, for example, invoices for materials used in the grow-op, there are no what are commonly referred to as score sheets, there is nothing along that nature, nothing that I am aware of in hearing the evidence that suggests that somehow the person occupying the residence had some connection to the grow operation within that building. [ 11 ] And as I say, there is also the consideration that Mr.

Siddall has taken the stand, he has testified, and his evidence, if accepted, would offer him a defence because clearly he denies having any knowledge of the grow operation, he denies being involved in its participation, he denies aiding and abetting it or encouraging its growth. As far as he was aware, his evidence is that the building was being leased to the Italian gentleman who was using it to store vehicles and that he never bothered to check in the building as to what was really going on in it, and he also denies that he was the person who diverted the hydro. [ 12 ] The Supreme Court of Canada in R. v.

W.D . requires that I have to first of all ask myself whether or not I accept his evidence, and if that evidence affords him a defence then he is entitled to an acquittal. Secondly, if I do not believe his evidence but I am left in doubt by it, in other words, what he is saying might reasonably be true, and then he is entitled to an acquittal. And finally, even if I reject Mr. Siddall's evidence I have to ask myself whether, on the evidence that I do accept, the Crown has proven its case beyond a reasonable doubt. [ 13 ] The Crown says that I should look with suspicion on Mr.

Siddall's evidence, and I am mindful there are aspects of Mr. Siddall's evidence that are very suspicious; the fact that there is no documentation for the lease, nothing to prove that any large sums of money were received as rent, and that there appears also to be some selective honesty in the sense that there is no thought about accepting a large amount of rental income without declaring that income to Revenue Canada.

So I am mindful that certainly the evidence is rife with suspicion, but it seems to me at the end of the day I am left in this position: I am in the position where I have to ask myself, is it possible that what Mr. Siddall is saying might be true, in other words, that while he was out of the country for a large portion of this time, the outbuilding was leased to another individual who used that building to grow marihuana without Mr. Siddall's knowledge, and I have to, at the end of the day, find that that is within the realm of reasonable possibility.

Again, this is not a case where I can be satisfied that this occurred, I am not suggesting that the evidence satisfies me that this is indeed what happened, but I find myself in the position where, as I say, it is a possibility such that a reasonable doubt is raised. [ 14 ] I also find that on the third head of the test in W.D ., even if I was to reject Mr. Siddall's evidence and even if he had not testified, at the end of day I am left with a situation where there is a marihuana grow operation in a building 300 metres from the residence.

There is no evidence that the accused directly tended to that crop or that he purchased any of the equipment used in it. There is no direct evidence that he instructed anyone to grow that marihuana for him. There is no evidence, in fact, that he even had any knowledge. There is nothing in the form of an admission on his part or any documentary evidence or anything of that nature linking him to that marihuana crop, nor to the hydro bypass. [ 15 ] The Crown asks me to infer that Mr.

Siddall must have known under these circumstances, but in my view it is not clear on the evidence why this is so, as I say, given the proximity of the outbuilding to the residence and given the other circumstances and the lack of any clear evidence linking Mr. Siddall to that grow operation. I concede that this is all very suspicious, that the explanation that has

been given is very suspicious. The presence of the camera in its location on the residence is very suspicious. The fact that Mr. Siddall lived in the residence after he returned from Thailand from about June or July until the police raid of September 19th and yet had no inkling that there was a marihuana grow operation in his outbuilding, is very suspicious.

But again, the test is not whether or not the Crown has raised a suspicion as to the accused's guilt, the test is whether or not the Crown has proven every element of the offence beyond a reasonable doubt. [ 16 ] I find that that burden has not been met and the Crown having failed to meet that burden, the accused is entitled to be acquitted on each of the three counts and I so acquit him. _______________________ K.D. Skilnick Provincial Court Judge