R. v. Lee and Pang Date:, 2011 BCPC 21

Citation: R. v. Lee and Pang Date: 20110202 2011 BCPC 0021 File No: 80278-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAN FAN LEE and XIAO HUI PANG REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: N. Khan Counsel for the Accused, Lee: I. Donaldson, Q.C. Counsel for the Accused, Pang: V. Michaels Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: November 15-16, 2010 Date of Judgment: February 2, 2011 INTRODUCTION [ 1 ] Jan Fan Lee (“Mr. Lee”) and Xiao Hui Pang (“Mr.

Pang”) face charges as co-accused under Information 80278-1 of unlawfully possessing and producing Cannabis marijuana. The charges—which invoke the prohibitions under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 against possession for the purpose of trafficking ( s. 5(2) ) and production ( s. 7(1) )—flow out of the discovery, by police, of what is commonly referred to as a “grow op” at a private residence located at 22721 Holyrood Avenue in Maple Ridge, B.C. (the “Holyrood Residence”). The alleged offence date is May 18, 2008. [ 2 ] As was their right, the accused called no evidence at trial.

By reason of the difficulties they have with English, they were assisted throughout the trial by a certified Cantonese translator. [ 3 ] Police and other first responders were dispatched to the Holyrood Residence on the alleged offence date after neighbours reported hearing a powerful explosion there. Citing a concern for the well-being of the occupants of the building as potential victims of an explosion, Constables Spencer, Russell and Chang of the Ridge Meadows detachment of the RCMP determined that exigent circumstances justified forced entry.

Upon gaining entry the attending officers immediately detected an odour of fresh marijuana within the Holyrood Residence and observed Mr. Pang (and, perhaps, Mr. Lee) engaged in an apparent effort to flee. Cst. Russell detained Mr. Pang and his colleague, Cst. Chang, detained Mr. Lee. Once the accused were secured, police cleared the rest of the building and, in so doing, found no other persons present. Neither did they find any indication that there had been an explosion, powerful or otherwise.

What they did find while clearing the house, however, was a sophisticated, 874-plant marijuana grow operation in the basement, together with the now-familiar accoutrements of high-intensity lamps, reflectors, electrical ballasts, fans, filters, nutrients, watering equipment and the like.

[4] Surprisingly little is controversial as between Crown and defence in this somewhat unique case. [5] Mr. Lee and Mr. Pang admit many facts, some of which I will discuss in greater detail below in these reasons. While theevidence was clear that they are not owners of the property, they admit for example that they were inside the Holyrood Residence when—after repeatedly knocking, announcing their presence as police and failing to attract a response—police kicked down the door andgained entry to it.

They admit that they are the individuals who were taken into custody at the Holyrood Residence following that forcedentry. Mr. Lee admits that his vehicle was parked in the Holyrood Residence’s driveway. Both accused also concede that the 874 plantsfound in the basement of the Holyrood Residence were marijuana plants. Neither dispute that possession of that quantity of marijuana, ifproven, could only be possession for the purposes of trafficking in marijuana. [6] What Mr. Lee and Mr.

Pang do not concede however is that they had either the knowledge or control of the marijuana discoveredat the Holyrood Residence that is necessary to establish legal possession of the same. Neither do they admit that they took any hand inthe cultivation of a marijuana crop which they deny was ever in their legal possession. [7] Crown counsel, Ms. Kahn, does not disagree that the evidence linking Mr. Lee and Mr. Pang to the grow op discovered at theHolyrood Residence is more slender than that seen in most grow-op cases.

Nevertheless, she argues that such evidence as has been ledwithin the Crown’s case—which all acknowledge is wholly circumstantial—is sufficient to found a conviction of both accused on allcharges. [8] Mr. Donaldson, counsel for Mr. Lee, and Mr. Michaels, counsel for Mr. Pang, emphatically disagree, saying that inferences ofguilt on the part of Mr. Lee and Mr. Pang of production and possession for the purpose of trafficking are on no account the only rationalinferences that can be drawn from the facts that have been proven by the Crown.

They contend that the evidence led at trial supports—or at least admits of—other rational inferences concerning Mr. Lee and Mr. Pang’s presence at the Holyrood Residence that areexculpatory and thus support their acquittal. [9] I find myself in respectful agreement with counsel for the accused and in respectful disagreement with counsel for the Crown. The slender body of evidence presented in this case against Mr. Lee and Mr.

Pang is not sufficient to persuade me, beyond a reasonabledoubt, that either had the requisite knowledge and control of the marijuana discovered at the Holyrood Residence that is necessary tosituate that marijuana within their legal possession. A fortiori, I am also not persuaded beyond a reasonable doubt that Mr. Lee and Mr.Pang were active participants in the cultivation of the marijuana crop that was discovered at the Holyrood Residence on May 18, 2008.

SUBSIDIARY ISSUES [10] A subsidiary issue arose in the course of trial concerning the proof the Crown sought to rely upon to associate one of theindividuals taken into custody at scene with the individual later conclusively identified as Mr. Pang at the police station, first at the timeof booking and then again some days later. Similarly, another subsidiary issue arose concerning a vehicle allegedly parked in the garageat the Holyrood Residence and the proof the Crown sought to rely upon to associate that vehicle with Mr.

Pang. [11] In light of my conclusions regarding the weakness of the Crown’s evidence against Mr. Pang (and Mr. Lee) overall, I do not findit necessary to descend into a detailed consideration of these subsidiary issues. [12] Dealing with the first subsidiary issue, I note that Mr. Pang does not dispute that he was at the Holyrood Residence on thealleged offence date and that he was taken into custody by police there. That admission deprives the technical concerns about means ofidentification of Mr. Pang of virtually all of their importance. [13] Dealing with the Crown’s reliance upon questionable proof of Mr.

Pang’s ownership of a vehicle allegedly found in theHolyrood Residence’s garage, I note that (for the sake of argument), even if the Crown had tendered unassailable proof of Mr. Pang’sownership of that vehicle, I would still not have been satisfied beyond a reasonable doubt that Mr.

Pang had knowledge and control overthe marijuana discovered there or that he took an active hand in cultivating it. [14] Accordingly, it profits no one for me to spend time parsing the evidence in support of questioned facts that would not materiallyaffect the disposition of this prosecution even if those facts were proven in a manner that no one could question. THE GENERAL LAW CONCERNING CIRCUMSTANTIAL EVIDENCE [15] As I have noted above, the case for possession for the purposes of trafficking and production against Mr. Lee and Mr. Pang iswholly circumstantial.

Accordingly, I must instruct myself as to the law that governs proof of a criminal offence where recourse is hadto circumstantial evidence. [16] The distinction between the approaches taken to cases built on circumstantial evidence, and those built on direct evidence, is lessimportant today than it once was. Broadly, in determining whether the Crown has made out a case against Mr. Lee and Mr.

Pang, I mustconsider the evidence led at trial within the context of the "rule" in Hodge's Case as it has been interpreted and, indeed, restated byCanadian courts. [17] The proper approach to prosecutions that rely on circumstantial evidence has recently been summarised as follows in R. v.Butler, 2007 BCCA 526 at para. 13: "R. v. Cooper (1977), (SCC), [1978] 1 S.C.R. 860, 34 C.C.C. (2d) 18 [cited to S.C.R.] reformulated the circumstantialevidence rule.

Departing from the formula expressed in Hodge's Case (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227, 168 E.R. 1136, theSupreme Court of Canada said, at 881: 'It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.'"

[18] Circumstantial evidence is considered cumulatively. As the learned authors of The Law of Evidence in Canada, 2nd ed.(Markham: LexisNexis, 1999) have stated: "Each piece of evidence need not alone lead to the conclusion sought to be proved. Pieces of evidence, each by itself insufficient, mayhowever when combined, justify the inference that the facts exist." (at p. 41) [19] Where the number of incriminating facts, each established by proof on a balance of probabilities, reaches a certain thresholdstanding together, then an inference of guilt beyond a reasonable doubt will become irresistible.

As Irving J. (Clement J. concurring)expressed it in R. v. Jenkins, [1908] B.C.J. No 58 (S.C. – Full Ct.): “It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence havingenveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to make some explanation or standcondemned.” (at para. 23) [20] This quotation and approach were endorsed very recently by the British Columbia Court of Appeal in R. v. Dae, [2010] B.C.J.No. 2136 (C.A.)—a case in which a conviction, based upon circumstantial evidence, was upheld.

In Dae, Prowse J.A. (for the court)stated, at para. 20, the following: “The trial judge was aware that he could only find knowledge on the part of Mr. Dae if it was the only reasonable inference to be drawnfrom the evidence. In his view, the evidence called by the Crown in this case was sufficiently compelling to invoke the principle from R.v.

Jenkins (1908), (BC SC), 14 C.C.C. 221, 14 B.C.R. 61 (B.C.S.C.) at para. 23, namely, that ‘there comes a timewhen, circumstantial evidence having enveloped a man in a strong and cogent net-work of inculpatory facts, that man is bound to makesome explanation or stand condemned’. I agree with the trial judge that this was one of those cases.” [21] As in all prosecutions built upon circumstantial evidence, the case at bar requires the court to be mindful of the distinction thatexists between inferences drawn from proven facts and mere conjecture or speculation.

An inference capable of satisfying a trial judgebeyond a reasonable doubt that an accused committed an offence must rest upon, and be drawn from, a foundation of proven facts. Byparity of reasoning, an inference inconsistent with guilt that is capable of raising a reasonable doubt must also rest upon, and be drawnfrom, a foundation of proven facts. [22] The distinction between inference and conjecture is easy to state but sometimes difficult to apply in practice. It speaks to thecourt's method of reasoning, as the House of Lords acknowledged in Caswell v.

Powell Duffryn Associated Collieries Ltd., [1940] A.C.152 where Lord Wright stated "... if there are no positive proved facts from which the inference can be made, the method of inferencefails and what is left is mere speculation or conjecture" (at 170, emphasis added). See also, in a civil context, Hall v. Cooper Industries(2005), 2005 BCCA 290 , 40 B.C.L.R. (4th) 257 at paras. 47-48 (C.A.), leave to appeal denied, [2005] S.C.C.A.

No. 351, (S.C.C.). [23] The overriding importance of the distinction between inference and conjecture in criminal cases in which the Crown relies oncircumstantial evidence is captured in the following passages from the governing authorities on this subject, all of which were recentlycited and applied in R. v.

Hehn, 2008 BCCA 170: "I am respectfully of the view that the learned trial Judge's observations in the course of argument, taken with his reasons for judgment,establish clearly that he failed to distinguish between a rational conclusion, based on evidence, and a conclusion based on conjecture andunsupported by evidence; and that this is an error in law, and that he misdirected himself." R. v. Dubois, (SCC), [1980]2 S.C.R. 21, rev'g (1979), 1979 ABCA 230 , 49 C.C.C. (2d) 501 (Alta. C.A.), and adopting the dissenting reasons ofMcGillivray C.J.A. at p. 509.

"The rule makes it clear that the case is to be decided on the facts, that is, the facts proved in evidence, and the conclusions alternative tothe guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rationalconclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one." R. v.McIver, (ON SC), [1965] 1 C.C.C. 210 at 214, aff'd (SCC), [1966] S.C.R. 254.

"In the result, it is my opinion that the learned trial judge failed properly to apply the rule in Hodge's case to the facts before him in thathe acquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but becausethere was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt." R. v. Wild, (SCC), [1971] S.C.R. 101 at 114.

POSSESSION FOR THE PURPOSES OF TRAFFICKING What the Crown Must Prove to Establish Possession [24] Prosecutions under s. 5(2) of the Controlled Drugs and Substances Act for possession of controlled substances, includingmarijuana, for the purposes of trafficking require proof of “possession” in accordance with the definition of that term prescribed in s. 2(1)of the Controlled Drugs and Substances Act.

That definition, in fact, incorporates by reference the definition of that term found in s.4(3) of the Criminal Code. (As noted, that the 874 plants comprising the grow op were marijuana plants and that possession ofmarijuana in that quantity could only be for the purposes of trafficking is admitted by both accused.) [25] It is common ground that there is no evidence in the case at bar of personal possession or “manual handling”, by Mr. Lee andMr. Pang, of the marijuana discovered on May 18, 2008 at the Holyrood Residence.

Rather, the Crown seeks a conviction of bothaccused of constructive possession of the 874 marijuana plants seized there as contemplated by s. 4(3)(

a) of the Criminal Code whichprovides as follows: "[4]

(3) For the purposes of this Act,

(

a) a person has anything in possession when he has it in his personal possession or knowingly i. has it in the actual possession or custody of another person, or ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person..." (emphasis added) [26] R. v. Fisher, 2005 BCCA 444 , [2005] B.C.J. No. 1955 (C.A.) was a prosecution in which the Crown sought to prove,inter alia, constructive possession by the accused of a narcotic.

As is the case with the present prosecution, the Crown's case forconstructive possession in Fisher was based on circumstantial evidence. Smith J.A. (Rowles and Donald JJ.A., concurring) conducted athorough survey of the modern authorities on point and then offered this often-cited, clear and concise

summary of what the Crown mustprove beyond a reasonable doubt in order to make out a case against an accused of constructive possession (in Fisher, of cocaine): "As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling. Toestablish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of thepresence of the cocaine and that he had some measure of control over its location." (at para. 24, emphasis added) Facts Bearing upon the Allegation of Possession [27] The evidence adduced at trial had various frailties but despite those I am satisfied that it established the following facts on abalance of probabilities: (

a) Neither Mr. Lee nor Mr. Pang is a registered owner of the Holyrood Residence; (

b) Mr. Lee and Mr. Pang were present on the main floor of the Holyrood Residence on the offence date of May 18, 2008 when policeforced entry into that building after no one responded to knocking on the front door and adjacent windows and commands, shouted inEnglish, to open up; (

c) An 874-plant active grow op was located in the basement of the Holyrood Residence that was accessible from the main level via alockable door at the bottom of an interior stairwell. The door to the basement was closed and locked, but the key to unlock it wasprojecting from the doorknob facing into the stairwell (that is, on the house side of the door separating the basement from the interior ofthe house); (

d) The grow operation consisted of a carefully controlled and cultivated multi-stage crop of healthy, well-cared-for marijuana plants. It had been in active production for a minimum of three months prior to its discovery by police on May 18, 2008 and, by reason inter aliaof an absence of automated watering and feeding equipment, it required “hands on” tending every two days or so; (

e) Mr. Lee’s vehicle was parked in the driveway of the Holyrood Residence on the offence date; (

f) As noted above, I am assuming for present purposes that Mr. Pang’s vehicle was parked in the garage of the Holyrood Residence; (

g) A smell of fresh marijuana of indeterminate strength was immediately noticeable upon entry to the main level of the HolyroodResidence on the offence date; (

h) Neither the clothing or persons of either Mr. Lee or Mr. Pang smelled of marijuana; (

i) When confronted by police after they had knocked, announced and made their forced entry, Mr. Pang was found in the areabetween the kitchen and living room, trying to put on a pair of shorts and apparently trying to flee the building. Mr. Lee was standing,fully clothed, near a closed, sliding glass door in the living room, a few paces away from Mr. Lee; (

j) The Holyrood Residence was furnished, but sparsely so. There was a bed in a bedroom that appeared to have been slept in. Thekitchen had a “lived in” appearance, with food in the fridge and cupboards, and food, alcohol and cooking paraphernalia on the counters; (

k) There were several large, filled garbage bags in the kitchen containing some smaller bags of potting soil. However, the smaller bagswere not clearly and easily visible inside the larger bags and they were mistaken by the exhibits officer tasked to investigate the site andmake seizures of relevant items to be bags of household trash and thus passed by; and (

l) There was clothing in some parts of the house but none of it was proven to belong to, or to fit, either Mr. Lee or Mr. Pang. [28] Importantly, the Crown called no evidence of neighbours or any other persons to prove that Mr. Lee or Mr. Pang, or theirvehicles, had ever been seen before at the Holyrood Residence. No one testified to say that Mr. Lee or Mr. Pang were inhabitants orperiodic visitors there. The Crown did not find any keys to the Holyrood Residence in the possession of either Mr. Lee or Mr. Pang. [29] No fingerprints or other direct evidence associated with Mr. Lee or Mr.

Pang were located in the basement where the grow opwas located. Neither were any documents, mail, identification, photographs or other personal property associated with Mr. Lee or Mr.Pang located and seized from anywhere within the residence. [30] No marijuana was found anywhere in the Holyrood Residence except in the basement where the grow operation was concealed. Similarly, no other drugs or drug paraphernalia of any kind were located and seized from Mr. Lee or Mr. Pang or from anywhere in theresidence.

Permissible Inferences from the Proven Facts [31] The Crown contends that I can fairly infer, as the only rational inferences that can be drawn from the facts proven that I haverecited above, that (tracking the language from Fisher), each of Mr. Lee and Mr. Pang “knew of the presence of the [marijuana in the

Holyrood Residence grow op] and that [each] had some measure of control over its location”. [32] I have already indicated that I cannot accept Crown counsel’s contention in this regard. In my view, while the presence of Mr.Lee and Mr. Pang in the Holyrood Residence is mildly suggestive perhaps of a measure of knowledge and possibly even control over themarijuana grow op located there, the inference of the knowledge and control that is necessary to establish legal possession is not close tobeing an irresistible one and, perforce, it is not “the only reasonable inference to be drawn from the proven facts”.

Another reasonableinference that can be drawn from the proven facts and that cannot be excluded is that Mr. Lee and Mr. Pang were mere visitors—or“found ins” as they are sometimes called—a transient presence at the Holyrood Residence, as distinct from persons with both knowledgeof and control over the marijuana crop situated in the basement of the residence. Indeed, the fact that the Crown called no evidence oftheir having ever been there on any occasion other than May 18, 2008—the day of their arrest—almost invites that conclusion. Andeven if Mr. Lee and Mr.

Pang had some awareness of the presence of marijuana in the Holyrood Residence, I also cannot rule out aswholly unreasonable an inference from the proven facts that they may have passively acquiesced in the face of suspicions or evenknowledge about the activities of others associated with the residence. [33] As defence counsel rightly submit, the factual foundation upon which the Crown seeks to have me draw the inference of guiltagainst Mr. Lee and Mr. Pang in this case is exceedingly thin.

It is remarkable for what it does not contain—touchstone indiciarecognised in the cases such as the possession of keys to the premises, observations of comings and goings, for example—some of whichI have commented upon above. I make particular mention again of the lack of any evidence of neighbours or any witnesses speaking to apattern of repeated attendances by either or both of Mr. Lee and Mr.

Pang at the Holyrood Residence—a gap in the evidence made all themore remarkable by the fact that the Crown’s expert stressed in his opinion evidence that the grow op at issue required frequent humantending. [34] I cannot infer, to the exclusion of all other reasonable exculpatory inferences, from the slender body of evidence—some of whichis equivocal—that Mr. Lee and Mr. Pang must have known that there was a grow op in the basement and exercised a measure of controlover its presence there. The somewhat unsatisfactory and unconvincing evidence of attempted flight, for example, is susceptible ofdiffering

interpretations including, as counsel submitted, an

interpretation that attributes to the accused a possible sense of perilassociated with a suspicion on their part that something illegal may have been afoot in the residence and a desire to dissociate themselvesfrom it when police arrived. [35] Mr. Lee and Mr. Pang required the assistance of a translator throughout their trial.

Given their demonstrable difficulties with theEnglish language it would also be imprudent for me to wholly rule out the possibility that they declined to answer the door when loudknocking and shouting was heard because they were fearful and confused and did not appreciate that the persons trying to gain entrywere police officers. And while the evidence does support the Crown’s contention that the smell of marijuana was present andidentifiable to those who can recognise it, there was no evidence to suggest, much less prove, that Mr. Pang or Mr.

Lee know whatmarijuana smells like and thus would have been on notice as to what was likely unfolding in the Holyrood Residence. I say again that itmay be that Mr. Pang and Mr. Lee were put on notice by suspicious circumstances at the residence; it may even be that they passivelyacquiesced in what was happening there.

But that is not the only rational inference available to me and, in any event, an inference ofpassive acquiescence does not meet the Crown’s heavy burden of proving knowledge and control, and hence possession, of the marijuanacomprising the subject grow op beyond a reasonable doubt. [36] Numerous grow-op-related decisions were placed before me by both the Crown and the accused.

All are, of course, unique ontheir facts but I am bound to say that the case at bar is distinguishable from all of those resulting in, or upholding, convictions in that theCrown evidence at bar is more slender than that revealed in any of those authorities. I believe I need say no more about the grow opdecisions to which I was referred than that and I will not trouble to list them. [37] R. v. Orr, 2010 BCCA 513 , [2010] B.C.J. No. 2576 (C.A.) (QL) is a very recent decision of the British Columbia Courtof Appeal in which some guidance for the present case can be found.

There, the court upheld a trial judge’s decision to exclude evidenceof production against an accused where, as here, the evidence connecting him to the grow operation was scant. [38] I acknowledge that the circumstances in Orr were different; in that case the Crown’s evidence was challenged on the ground thatthe investigating officers did not have reasonable and probable grounds to arrest the accused and that they had, accordingly, breached hiss. 9 rights against arbitrary detention. (The evidence against him amounted to little more than the fact that he answered the door,barefoot, of the house where a grow op was located after police knocked and announced for the purpose of executing a search warrant.

One of the officers, but not the other, testified to smelling vegetative marijuana on his person.) Nevertheless, the following comments ofLow J.A. (for the court) regarding the minimal links between the accused and the subject grow operation are of assistance in assessingthe sufficiency of the Crown’s evidence in the case at bar: “...

At trial, the respondent and the Crown formally admitted that the search warrant was valid, that the police found a grow operation inthe house with 358 marihuana plants, that the house was owned by [another person], and that the fingerprints of the appellant were notfound on any of the items seized from the premises or anywhere in the premises. * * * ... the Crown tendered and the court received a document showing that the respondent was the registered owner of a motor vehicle foundat the dwelling.

This was not a fact known to the police officers at the time of the arrest. * * * When the ultimate arrest was effected, the arresting officer had conducted no investigation as to the use of the house generally, apartfrom being informed of the presence of a grow operation, or as to the connection of the respondent to the residence, apart from the factthat he had answered the door dressed casually and barefoot.

In my opinion, something more was needed to connect the presence of therespondent in the house to the illegal drug activity.” (at paras. 2, 4 and 14, emphasis added) [39] While there are differences, there are also parallels to be drawn between the case at bar and the very recent decision in R. v.

Passon , 2011 BCSC 16 . In that marijuana grow-op case, Humphries J. was confronted with circumstantial evidence of possession that, like the evidence here, did not support an inference of guilt as the only reasonable inference that could be drawn from the proven facts. At paras. 76-79 of her reasons in Passon , her Ladyship described the case before her in a way that, in many respects, is apposite with respect to the prosecution’s case against Mr. Lee and Mr. Pang: “In the absence of any other explanation, [an inference of control over the grow op] is certainly one reasonable inference that could be drawn. Mr.

Passon could have been growing the marijuana himself or he could have been acting as a caretaker or guard for the absentee landlords and/or principal growers. Rather than provide an explanation, which of course he has no obligation to do, the accused has absconded. However, there is no evidence to suggest that Mr. Passon resided alone on the property, or that he leased the premises. There is no evidence that he could grant or prevent access to the blue building. There is no evidence connecting him directly to the grow operation equipment.

In each of the circumstantial cases referred to above by the Crown ( Vu, Twohey, and Bauer ), the evidence connecting the accused to control over the drugs was much more direct than it is here. I cannot say on a consideration of all of the evidence that it is sufficient to allow me to draw, as the only rational inference, the conclusion that Mr. Passon was participating in growing the marijuana or that he had a measure of control over the grow operation. It may be, as I have noted, safe to say he knew about it, but the evidence is not sufficient to prove more than that. The Crown also contends that Mr.

Passon is a party to the offences. The considerations which would go into an analysis of whether Mr. Passon aided or abetted the principals are the same as I have set out above. He may have known the grow operation was there, but there is no evidence he exerted any control over it on his own behalf or on behalf of anyone else. The Crown has not proven beyond a reasonable doubt that Mr. Passon was aiding or abetting the principals (whoever they might be) in growing the marijuana or possessing it for the purpose of trafficking.” [ 40 ] To summarise, the Crown’s circumstantial evidence of possession against Mr.

Lee and Mr. Pang falls far short of having “enveloped” them in a “strong and cogent net-work of inculpatory facts” (to track the language in Jenkins ) probative of knowledge and control. Critical mass has not been achieved; the Crown’s case has not caused the Jenkins noose to tighten around their necks. The comparatively wide gap between the Crown’s evidence and a conclusion of guilt can only be bridged by speculation and the authorities I have canvassed earlier in these reasons make it plain that that is a bridge that no trial judge is permitted to cross. Reasonable inferences of Mr. Lee and Mr.

Pang being a fleeting, transient presence at the Holyrood Residence, perhaps even a passively acquiescent presence, can be drawn from the proven facts and cannot be ruled out. I have suspicions about these two accused, as anyone would, but that is not enough. They are entitled to be presumed innocent until proven guilty beyond a reasonable doubt and—after assessing the Crown’s entirely circumstantial case against them in the way that the law requires—I am left with a reasonable doubt about Mr. Lee and Mr.

Pang having had the knowledge and control necessary to found legal possession of the marijuana in the Holyrood Residence grow op. Accordingly, I must acquit them of possession of marijuana for the purposes of trafficking. PRODUCTION [ 41 ] On largely the same basis as I have found it necessary to acquit Mr. Lee and Mr. Pang of possession of marijuana for the purposes of trafficking, I also find I must acquit them of production of marijuana.

Having determined that the Crown’s circumstantial evidence is too weak to establish constructive possession of the marijuana plants in the Holyrood Residence grow op, I am even less able to infer from the proven facts that Mr. Lee and Mr. Pang not only knew of and controlled the location of those plants in the Holyrood Residence but took an active hand in cultivating them. I acquit them of the production charge as well. DISPOSITION [ 42 ] All charges against Mr. Lee and Mr. Pang under Information 80278-1 are dismissed. [ 43 ] Order accordingly. _________________________ Thomas S. Woods, P.C.J.