R. v. Vu Date:, 2012 BCPC 46

Citation: R. v. Vu Date: 20120220 2012 BCPC 0046 File No: 82185-2C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. THUY HONG VU REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: P. Bachra Counsel for the Accused: M. Foster Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: June 1-2, July 18 and September 28, 2011 Date of Judgment: February 20, 2012 INTRODUCTION [ 1 ] This case has its origins in a marijuana “grow operation” discovered and seized by police at 2563 Verbena Place, Coquitlam, B.C. (the “Verbena Residence”) in April of 2009.

The accused, Thuy Hong Vu (“Mr. Vu”), faces two charges under Information No. 82185-2C, sworn October 16, 2009. Count 1 alleges that on or about April 23, 2009, he unlawfully produced “Cannabis (marihuana)”, [1] contrary to s. 7(1) of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19 (the “ CDSA ”). Count 2 alleges that, on the same date, he possessed the same controlled substance for the purpose of trafficking, contrary to s. 5(2) of the CDSA. The Crown proceeds against him by indictment. [ 2 ] The case against Mr. Vu is entirely circumstantial.

He took the stand to give evidence in his own defence and he resolutely denied that the marijuana grow operation that was found by police in the house registered in his name was known to him, much less controlled or cultivated by him in any way. His evidence was that he leased the house out to a tenant and that the grow operation can only have been set up and maintained by someone other than himself, outside his knowledge and control and after he departed the property. [ 3 ] Considerable evidence was led by both the Crown and the defence at the trial of Mr. Vu’s charges.

Ordinarily, I would canvass that evidence, on both sides, more fully than I have in these reasons. But here, the confluence of (

a) an important admission made by

Mr. Vu regarding the time he says he was the sole occupant of the Verbena Residence with (

b) expert evidence about the time periodwhen the marijuana plants discovered there by police were present in the residence, and (

c) a few other ancillary facts, is dispositive. Accordingly, I shall provide a truncated outline of the facts found and train the focus in these reasons for judgment mainly upon thenoted key admission and expert evidence. WHAT THE CROWN MUST PROVE TO ESTABLISH PRODUCTION [4] The offence of production of controlled substances is addressed in s. 7 of the CDSA. Marijuana is one of the controlledsubstances embraced by that section. Given, inter alia, the frequent references in his counsel’s written and oral submissions to the“marijuana grow operation” found by police at the Verbena Residence, I do not understand Mr.

Vu to contest the Crown’s contention,supported by unchallenged certificates of analysis, that the plants seized from the Verbena Residence were marijuana plants. [5] The word “produce” is a defined term in s. 2(1) of the CDSA.

The relevant portion of the statutory definition reads as follows: “... cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwiseobtained.” [6] The cases that have interpreted that language have concluded that “cultivation” of marijuana connotes the bestowal of labour andattention upon marijuana plants for the purpose of promoting their growth: see, for example, R. v. Busby (1972), (YKCA), 7 C.C.C. (2d) 234 (Y.T.C.A.).

The act of cultivation of a controlled substance is a continuing offence and covers the activities thatsustain marijuana plants from seeding or cloning through to harvest at maturity; it is ongoing during periods of deliberate inactivity thatmay occur from time to time during the growth cycle as the plants develop within an environment created to foster that development: R.v. Arnold, (1990), (BC CA), 74 C.R. (3d) 394 (B.C.C.A.). [7] It is common ground that there is no direct, hands-on evidence of “production”, by Mr. Vu, of the marijuana grow operationseized by police at the Verbena Residence.

Rather, the Crown invites the court to infer that Mr. Vu “produced” that marijuana from thecircumstantial and expert evidence that was adduced at trial. WHAT THE CROWN MUST PROVE TO ESTABLISH POSSESSION FOR THE PURPOSE OF TRAFFICKING [8] Prosecutions under s. 5(2) of the CDSA for possession of controlled substances for the purposes of trafficking, includingmarijuana, require proof of “possession” in accordance with the definition of that term prescribed in s. 2(1) of the Act.

That definition, inturn, incorporates by reference the definition found in s. 4(3) of the Criminal Code. [9] It is common ground that there is no evidence in the case at bar of personal possession or “manual handling”, by Mr. Vu, of themarijuana discovered on April 23, 2009 at the Verbena Residence. Rather, the Crown seeks conviction of him based upon constructivepossession of the marijuana plants seized there as contemplated by s. 4(3)(

a) of the Criminal Code. That enactment provides 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) [10] 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 here, the Crown's case for constructive possession in Fisher wasbased on circumstantial evidence. [11] Smith J.A. (Rowles and Donald JJ.A., concurring) conducted a thorough survey of the modern authorities on point in Fisher andthen offered this often-cited, clear and concise

summary of what the Crown must prove beyond a reasonable doubt in order to make out acase against an accused of constructive possession (in that case 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) [12] Where an illicit substance is possessed by an accused in a quantity that demonstrably exceeds that which could be reasonablyrequired for personal use, his or her possession of that substance “for the purpose of trafficking” can be inferred: see, for example, R. v.Budd, [2008] B.C.J. No. 2793 (S.C.) at para. 89ff.

THE GENERAL LAW REGARDING CIRCUMSTANTIAL EVIDENCE [13] Elsewhere and on somewhat similar facts I have offered a detailed outline of the general law regarding reliance, by the Crown,upon circumstantial evidence to prove the commission of a criminal offence: see, for example, R. v. Lee, [2011] B.C.J. No. 150 (Prov.Ct.) at paras. 15-23. For the purposes of this case I would summarise that law by simply stating that, looking at the evidencecumulatively, in order to convict Mr.

Vu I must be satisfied beyond a reasonable doubt that, for each count, the relevant facts found (eachproven on a balance of probabilities) support an inference of guilt as the only reasonable inference that can be drawn from those facts. THE CROWN’S THEORY [14] Briefly put, it is the Crown’s contention that Mr. Vu took an active hand in cultivating the crop of marijuana that was found inthe Verbena Residence on April 23, 2009, and that even if other individuals may have done some “hands on” work tending the crop, he

remains liable at least as a party for its production pursuant to s. 21 of the Criminal Code . [ 15 ] The Crown further argues that while members of his family might have ceased residing at the Verbena Residence some months prior to the execution of the search warrant there on April 23, 2009, Mr. Vu resided continuously at the house up to March 29 th or 30 th (his claimed time of departure) and maintained some kind of presence there in the weeks that followed.

Thus, the Crown contends, his tenure at the Verbena Residence coincided with the presence of the marijuana grow operation there and that he has to have had the knowledge and control of the marijuana grow operation at the Verbena Residence necessary to place him in legal possession of it. [ 16 ] Last, the Crown argues that the quantity of marijuana comprising the grow operation vastly exceeds what anyone would produce for personal use and that it could only have been grown for the purpose of trafficking. THE DEFENCE THEORY [ 17 ] Equally briefly put, the theory of the case advanced by the defence is that Mr.

Vu moved out of the Verbena Residence on March 29 or 30, 2009 in the wake of a family conflict that had led to his wife leaving earlier and his elder and younger daughters leaving at the end of 2008, and in early 2009, respectively. Counsel argues, based on his client’s testimony, that Mr. Vu was distressed and discomfited by living alone in what had been the family home and that he moved into a friend’s basement suite to get away from reminders of happier times. (Counsel also argues that Mr.

Vu had an economic incentive to move in that the property was capable of generating monthly rental revenue that well exceeded his monthly mortgage payments.) [ 18 ] Mr. Vu testified that he found a tenant, through an acquaintance, to occupy the Verbena Residence when he vacated it. That tenant, the defence argues, was a Chinese mechanic called Woa Pu Kook aka Woa Pu Kuuk (“Mr. Kook”) who, as sponsor, was awaiting the arrival of his own wife and daughter as immigrants from China and needed accommodation larger than his own basement suite to house them and himself when they arrived.

The tenancy was initially fixed at six months but was renewable provided Mr. Kook showed himself to be a reliable and good tenant. [ 19 ] The defence contends that it must have been Mr. Kook who set up, tended and had knowledge and control (and hence, possession) of the marijuana grow operation in the Verbena Residence during the brief period of his tenancy there and that Mr. Vu was wholly unaware of the existence of the operation until after the search warrant was executed on April 23, 2009. THE KEY ADMISSION AND RELATED EXPERT EVIDENCE [ 20 ] Repeatedly in the course of giving his evidence, Mr.

Vu testified that he lived in the Verbena Residence up to March 29 th or 30 th of 2009. In one instance he acknowledged that his tenure there was “continuous” until he moved out. For example: “Q And you lived continuously at that residence until March 29th or 30th, 2009, correct? A Correct.” Transcript , July 8, 2011, p. 40 (Cross-examination) “Q Okay. And were -- were you still at your -- your house on March 29th, 2009, or not? A At about the time I moved out.” Transcript , July 8, 2011, p. 22 (Direct examination). See also, pp. 9-10, 24, 36-37, 39-40. [ 21 ] Mr.

Vu was equally clear in his testimony that during the month of March of 2009, he was essentially alone in his continuous habitation of the Verbena Residence. As is confirmed in the Transcript for July 18, 2011, at page 35, he gave consistent evidence that: (

a) his common law wife had moved out and into to her own separate residence some time before 2008 (although she did have occasional overnight visits with Mr. Vu at the Verbena Residence); (

b) his eldest daughter had moved out on her own by the end of 2008; and (

c) his younger daughter had moved in with her mother in January or February, 2009. [ 22 ] There is no reason for me to disbelieve this evidence. [ 23 ] As can be seen in the

summary of it above under the heading “The Defence Theory”, Mr. Vu’s defence was concerned almost exclusively with an effort to dissociate himself from the Verbena Residence and the goings-on there from March 29 or 30, 2009 and afterward. However, expert opinion evidence that addressed the state of maturity and condition of the plants seized from the residence on April 23rd (which I shall discuss in detail presently) situated the marijuana grow operation in the Verbena Residence as a going concern all through the month of March of 2009 (and even before)—weeks before Mr. Vu says he moved out.

That expert evidence also spoke to the frequent human care and tending that the marijuana crop required over its lifetime, given that the grow operation was not wholly automated. [ 24 ] The convergence of Mr. Vu’s admission with the Crown’s expert evidence, if accepted, places Mr. Vu by his own admission in “continuous” sole occupation of the Verbena Residence for a period of weeks in March while a large marijuana crop was maturing there and in need of regular and frequent human attention.

This dramatically diminishes the importance of the evidence regarding his involvement, if any, with the house after March 29 or 30, 2009.

THE CROWN’S EXPERT EVIDENCE IN DETAIL [25] Crown witness Cpl. John Uzelac was qualified by the Crown as an expert in the “cultivation, production, possession for purposesof trafficking, use, distribution, price and packaging of marijuana”. Counsel for Mr. Vu did not dispute that Cpl. Uzelac was a witnesswho, by dint of his training and experience, was capable of giving necessary expert evidence in this case within those domains ofexpertise. The Duration that the Marijuana Plants Were Present in the Verbena Residence [26] Cpl.

Uzelac opined at trial that many of the more mature plants discovered in grow rooms at the bottom level of the VerbenaResidence had been present there for approximately two months and others for “approximately six weeks, perhaps a little less”:Transcript, June 2, 2011 at p. 77. This critically important evidence places the marijuana crop in the house several weeks before March 29th or 30th when Mr. Vu testified he moved out of it and relinquished possession to Mr. Kook. [27] Defence counsel cross-examined Cpl.

Uzelac closely, inviting him to admit the possibility that the plants in the grow rooms atthe Verbena Residence might have been moved there not long before and, in particular, after Mr. Vu had vacated the residence at the endof March.

Counsel drew the officer’s attention to the clean and tidy condition of the grow rooms, the lack of dirt and staining on thefloors surrounding the plant pots and the lack of staining or damage to walls and floors from water and water condensation, suggestingthat these facts were consistent with living plants at different stages of maturity having been brought to the Verbena Residence after Mr.Vu departed at the end of March, perhaps as a result of their movement having been compelled by their discovery elsewhere. [28] Cpl.

Uzelac could not be brought to agree with the propositions advanced to him in this regard by Mr. Vu’s counsel, despitepersistent and forceful questioning. He acknowledged that the Verbena Residence grow operation was a particularly tidy one but he—like other police witnesses at trial who were asked similar questions—confirmed that in the many investigations he had carried out hehad seen other grow operations that were just as tidy and well-maintained. [29] Cpl.

Uzelac also testified, importantly, that there was another reason why the inference of the marijuana crop being a relativelyrecent arrival at the Verbena Residence was untenable. Marijuana plants, he explained, are raised under highly controlled conditionswhere light cycles, and feeding and watering cycles, are carefully orchestrated. He testified that a disruption of those conditionsnecessitated by a precipitous move of the crop to new premises would “shock” the plants and degrade their condition in some way thatwould be visible. [30] Cpl.

Uzelac’s evidence was that the photographs of the plants seized from the grow operation at the Verbena Residence did notreveal any signs that they had been “shocked” by having been moved to the Verbena Residence partway through their differing growthcycles. To the contrary, the plants looked healthy and untraumatised, he said. In his own words: “… if you're changing locations, you're shocking the plants. Plants are on a very specific light cycle. Once they're in a grow area, theybecome comfortable with that grow area. To move them, to alter the growth environment would be to shock the plants.

I don't see anyevidence here that these plants have been shocked. They look well maintained. They look well cared for. They don't look like theyhave been moved. They look healthy. They look -- they look conducive with being in that place, and that's a common practice that isseen with producers to maintain the grow area for the plants.” Transcript, June 2, 2011 at p. 78 [31] While, as I have noted, Mr. Vu’s counsel did not object to Cpl.

Uzelac being qualified as an expert in the “cultivation, production,possession for purposes of trafficking, use, distribution, price and packaging of marijuana”, in final submissions he argued strenuouslythat when addressing the “shocking” of marijuana plants by moving them the officer transcended the limits of his expertise. In particularhe argued that Cpl. Uzelac lacks expertise in the field of botany sufficient to offer an opinion on “shocking.” In the words of counsel’swritten submission: “While he may have general knowledge regarding marijuana grow operations, Cpl.

Uzelac was not qualified as an expert in Botany. Ifone examines Cpl. Uzelac’s C.V., there is no mention of any courses or scientific research in botany.” (at para. 80) [32] I find that I am unable to accept that argument. [33] It is important to recall that, at the end of a day, every testimonial expert need not have an array of letters after his or her namedenoting years of academic study and achievement.

Many experts do come forward with those kinds of credentials, as well they might,but degrees and designations and badges of academic prowess are not the sine qua non of what qualifies a witness as a testimonial expert. [34] A testimonial expert must, at bottom, be a “skilled person”. The required skill is acquired by training and practice that furnishesthe expert with a good knowledge of the science or art concerning which the expert’s opinion is sought. The nature of the training andpractice that can confer that skill is not narrowly defined or limited. This is the gravamen of the decision of Tyrwhitt-Drake Co.

Ct. J. inR. v. Bunniss, (BC SC), [1965] 3 C.C.C. 236 (Co. Ct.)—a venerable authority that Wood J.A. (as he then was) noted“has been affirmed many times” by the British Columbia Court of Appeal: R. v. W. (R.J.), [1989] B.C.J. No. 2379 (C.A.). [35] On this point, Tyrwhitt-Drake Co. Ct. J. expressed himself as follows at para. 11 of Bunniss: “A university degree, particularly one from a professional faculty, presupposes a certain level of knowledge in the possessor thereof. Butthere is no special magic in such an adornment.

It is to be noted that the learned professions will not admit a graduate to practice until hehas, by the acquisition of a modicum of experience, enabled himself to demonstrate a certain degree of practical efficiency in his art. It isnot necessary, for a person to give opinion evidence on a question of human physiology, that he be a Doctor of Medicine, provided hecan satisfy the Court that his knowledge of the particular aspect of the subject under scrutiny is adequate. His being a graduate or notgoes merely to weight, and does not affect the question of the admissibility of his evidence one way or another ...”

[36] It is true to say that the subject of “shocking” did not arise until cross-examination and then in relation to the hypotheticalquestion of a move of the plants, en masse, to the Verbena Residence from elsewhere after Mr. Vu had taken his leave of it at the end ofMarch. (I say “hypothetical” because no defence evidence was led of any such move.) But the passage quoted in para. 30 of thesereasons from Cpl.

Uzelac’s testimony makes plain that, as the Crown’s expert, he clearly has acquired a scientific understanding aboutthe growth cycles of marijuana plants and how they are affected by varying growing conditions. [37] During his evidence-in-chief the officer gave rather detailed botanical evidence touching upon differing strains of Cannabis, theways in which marijuana plant morphology changes as plants mature, how long the growth stages last, how hybrids may differ in theirgrowth patterns from purebred strains, and so forth: see Transcript, June 2, 2011 at pp. 58ff.

This botanical evidence, quite properly, didnot draw any objection from the defence. It falls within the scope of meaning of the “cultivation” and “production” of marijuana—admitted domains of the officer’s expertise—as do, in my opinion, “shocking” and other growing condition phenomena that mightconceivably affect marijuana plant health, for good or for ill. [38] In sum, I am satisfied that Cpl.

Uzelac—a “skilled person” in the Bunniss sense—possesses the necessary expertise, resultingfrom his training and practice, to be able to answer technical questions of the kind posed by defence counsel regarding the effects thatmoving a marijuana crop to a new location partway through its growth cycle would have on the crop’s health and viability. I furtherconsider that Cpl.

Uzelac’s expert evidence regarding “shocking,” lack of signs of “shocking” and the likely time the marijuana crop atissue in this case was in situ at the Verbena Residence is necessary in the sense conveyed by the Supreme Court of Canada when itarticulated the basis for the admissibility of expert opinion in its decision in R. v. Mohan, (SCC), [1994] 2 S.C.R. 9. Hisopinions in this regard are therefore admissible. [39] Defence counsel raised a further objection to the evidence of Cpl. Uzelac, citing his status as a police constable and, periodically,a Crown expert. He invited the court to decline to assign Cpl.

Uzelac’s expert opinion on “shocking” any weight whatsoever, given hisalleged lack of independence and impartiality. Here too I find myself un-persuaded by counsel’s able submissions. [40] Various authorities were cited to me that stand for the proposition that an expert’s affiliation with a party, suggestive of apossible lack of impartiality, goes to the weight to be accorded to the expert’s opinion. That, unquestionably, is the law and it is borneout by the cases cited to me by the defence and by the more recent decision of Ehrcke J. in R. v. Bhullar, [2010] B.C.J. No. 2355 (S.C).

But I see nothing in those cases, or more importantly in the facts before me, that would propel me to conclude that I should assign noweight whatsoever to Cpl. Uzelac’s opinions (as counsel urges me to do). [41] I have taken Cpl. Uzelac’s association with the RCMP into account and, after considering his testimony as a whole, I have madea minor adjustment to the weight I accord it to reflect that fact. I have done so because not to discount to some degree the testimony ofan expert who is so closely aligned with an interested party (here, the Crown) would be, frankly, naïve. [42] But I did not find Cpl.

Uzelac to be argumentative or unbalanced in his testimony; to the contrary, he was calm, polite andforthright in his answers and he made concessions from time to time when it was appropriate to do so. He did not cling to unreasonablepositions, reject alternative scenarios out of hand or show other indications of having lost sight of his duty to offer independent andimpartial opinion evidence.

He did not, in other words, reveal by the content or manner of his testimony that he had become, in effect, anadvocate for the Crown. (This can and does happen in some prosecutions, unfortunately, but it did not happen here.) While it cannot besaid that Cpl.

Uzelac’s affiliation with the RCMP has no bearing upon the reception of his evidence in the case at bar, the residue ofweight that I am prepared to accord it (after making a small allowance for that affiliation) is considerable. [43] The answer to the question of whether marijuana plants truly will show evidence of deleterious effects if relocated partwaythrough their growth cycles is not obvious. Marijuana plants are sometimes grown out of doors, after all. One might be tempted toquestion the “shocking” evidence on that basis alone. But that is a temptation I must resist.

Plants reared outdoors may differ fromthose reared indoors under controlled conditions. I simply don’t know enough about the subject to wade, unguided, into itscomplexities. (Were it otherwise Cpl. Uzelac’s expert evidence would be inadmissible because it would not be “necessary” in theMohan sense.) [44] The question of whether marijuana plants truly will show evidence of deleterious effects if relocated partway through theirgrowth cycles is consummately one that a layperson cannot answer. With respect to matters botanical, as the trier of fact in this case Iam, and must conduct myself as, a layperson. [45] Cpl.

Uzelac’s expert opinion is that, had they previously been moved from elsewhere to the Verbena Residence, the marijuanaplants that were discovered and seized there would, by reason of the phenomenon he described as “shocking”, show visible evidence oftrauma. He saw no evidence of such trauma in the images of the plants that he studied and examined with great care and, accordingly, heexpressed his conclusion as an expert in the “cultivation [and] production of marijuana” that the plants had not been moved but, rather,had been continuously present at the Verbena Residence.

As a layperson not possessed of special knowledge and expertise in the“cultivation [and] production ... of marijuana”, I am not qualified—as others may be—to second guess Cpl. Uzelac’s opinion evidenceregarding the “shocking” phenomenon. There were no opinions from others with comparable or better qualifications than Cpl. Uzelacplaced before me and so, for the purposes of this case, Cpl.

Uzelac’s opinion is the last word on the subject. [46] Based upon the foregoing I find that many of the plants comprising the Verbena Residence grow operation—and, by necessaryimplication, the infrastructural paraphernalia needed to enable and indeed foster their growth—were present in the residence severalweeks before Mr. Vu moved out of it on March 29 or 30, 2009. The Need for Human Tending [47] There was no evidence seized or noted at scene to suggest that any automated system was in place at the Verbena Residence todeal with the watering and feeding of the marijuana crop that was discovered there. Cpl.

Uzelac opined that a manual grow operation,like the one at issue in this case, requires frequent human tending. In his own words, “In a system such as this, it's very consistent for these plants would require watering or nutrients at least every second or third day.

However, generally speaking, it's delivered every second day.” Transcript , June 2, 2011 at p. 62 (Direct examination) [ 48 ] This evidence was not challenged; indeed, it was confirmed on cross-examination. “Q And there is no automated watering here. This grow operation would take quite regular care? A Correct. Q Daily? A Watering I would suggest probably every second day. However, yes, given the state of the grow, its condition, I would venture that there was some attention given to it daily.” Transcript , June 2, 2011 at p. 81 (Cross-examination) [ 49 ] Based upon Cpl.

Uzelac’s uncontradicted expert evidence I find that over the course of its lifetime—including during the months of March and April, 2009—the marijuana grow operation discovered and seized at the Verbena Residence received human tending, in the form of watering and feeding, at least every second day. Quantity and Value of the Marijuana Seized from the Verbena Residence [ 50 ] Cpl.

Uzelac was asked, in his expert’s capacity, to give evidence about the quantity, value and likely use of the marketable marijuana seized by the police from the Verbena Residence following the execution of the search warrant there on April 23, 2009. Using what he assured the court, and I accept, were conservative measures—that is, of an average yield of one ounce of marketable marijuana for each of the 486 plants and a street value of between $1,500 and $3,000 per pound (assuming a “commercial” or “wholesale” means of distribution and sale)—Cpl.

Uzelac opined that the 486 ounces of marketable marijuana comprising the grow operation: (

a) far exceeded that which any person would ever have on hand for personal use (given that a heavy user consumes five grams per day); and (

b) would fetch between $45,000 and $90,000 in the illicit commercial/wholesale marijuana market. [ 51 ] This evidence was neither challenged nor contradicted. Neither has it been argued before me that the marijuana seized from the Verbena Residence was only intended for personal use. Based primarily on Cpl. Uzelac’s expert evidence, I find that any person who is shown by the evidence, beyond a reasonable doubt, to have possessed the marijuana there did so for the purpose of selling it to others— that is, for the purpose of trafficking.

EVIDENCE OF NON-CONCEALMENT OF THE GROW OPERATION [ 52 ] The following facts confirm the absence, at the time of discovery, of any steps having been taken to conceal or isolate the grow operation from detection by persons moving about normally within the Verbena Residence. These facts are, in my view, uncontroversial. The Crown led evidence to establish them, that evidence was not shaken on cross-examination and nothing was said in the course of Mr. Vu’s testimony given in his own defence that contradicted or challenged them. (

a) The grow operation was mainly confined to the bottom level of the house. There, four grow rooms—accessible by a non-locking door—were discovered by police. That part of the operation proper comprised some 486 marijuana plants at differing states of maturity —a pattern consistent with the enterprise having a 90-day, three-stage growth cycle; (

b) Upstairs, in a small room on the bedroom level about the size of a laundry room, police located 310 clone plants. Access to that room could also be gained through a door without a lock; it was shrouded with mylar sheeting and contained high-intensity lighting equipment; (

c) High intensity lighting and a ventilation system comprising fans, filters and exhaust piping passing through walls and up to the roof level were observed to be operating in the bottom level of the Verbena Residence where the more mature plants were located. A fan was running audibly when police discovered the grow operation (but it could not be heard from outside); (

d) The bottom level grow rooms were, like the upstairs clone room, shrouded with mylar sheeting. Electrical ballasts and timer switches were noted in a bottom level ballast room, and nutrients, hoses and watering/fertilising equipment were found in the bottom level bathroom. The ballast room door was open when the search warrant was executed and it did not have a lock. The bottom level bathroom containing nutrients and watering equipment was similarly not locked.

CONCLUSIONS REGARDING PRODUCTION AND POSSESSION FOR THE PURPOSE OF TRAFFICKING DURING MARCH, 2009 [ 53 ] The admissions and found facts set out above satisfy me, beyond a reasonable doubt, that during the month of March, 2009, Mr. Vu produced the marijuana plants comprising the grow operation that was seized in April, 2009. Those admissions and found facts also persuade me, beyond a reasonable doubt, that during the month of March, 2009, Mr.

Vu possessed the subject marijuana plants and that he did so for the purpose of trafficking. [ 54 ] The conclusions I have expressed are inferences drawn from the facts that I have focussed upon in the earlier portions of these reasons. In keeping with the legal test that governs the approach that trial judges are obliged to take to circumstantial evidence—there being no direct evidence of Mr. Vu having “bestowed labour and attention” upon the marijuana crop or having “manually handled” it—I

have considered whether any other reasonable inferences, consistent with Mr. Vu’s innocence, can be drawn from those facts. I have considered that question with great care and I have been unable to conceive of any reasonable inferences other than the ones I have drawn against Mr. Vu. [ 55 ] Mr. Vu was, by his own admission, in continuous occupation of the Verbena Residence—his own house—throughout the month of March, 2009. For the most part, he was unaccompanied by any other member of his family.

There was a large and sophisticated marijuana grow operation present in that house that was not in any way concealed or isolated. It could be accessed simply by opening doors without locks—some on the bottom level and one on the bedroom level—some of which were not even closed. The grow operation’s infrastructure of high intensity lighting, ballasts, switches, mylar sheeting, nutrients, watering equipment and the like were there to be seen with little difficulty by any person present at the Verbena Residence and certainly by the person who, during March 2009 both owned the house and had complete dominion over it.

A fortiori , that infrastructure could not have been created and installed without the knowledge and consent of Mr. Vu who, by his own admission, was “continuously” present there until March 29 or 30, 2009. [ 56 ] The grow operation required tending—feeding and watering—at least every other day. The expert evidence, and my finding of fact, is that—given its condition—the marijuana crop was tended every two days and, at some points, likely tended on a daily basis. I can only infer that Mr. Vu did that tending in order to enable the plants to grow and develop.

There is no reasonable alternative inference available to me. [ 57 ] Similarly, to track the language of Fisher , I cannot infer other than that Mr. Vu “... knew of the presence of the [marijuana] and that he had some measure of control over its location”. There is no other reasonable inference that can be drawn when I consider that the “location” was the Verbena Residence—the home that was registered in his name and which he occupied “continuously” and almost exclusively throughout March of 2009. Again, he had complete dominion over the house and over its contents.

It cannot be reasonably contended, in my view, that during March he lacked the knowledge of and control over the grow operation necessary to fix him with legal possession of it. And, again on the expert evidence, the quantity of the marijuana—486 maturing plants having a wholesale street value of between $45,000 and $90,000 (not to mention the 310 clones)—vastly exceeded what any individual would ever need for personal use. The only reasonable inference that I can draw is that Mr.

Vu possessed the marijuana comprising the Verbena Residence grow operation as a cash crop and for the purpose of trafficking in marijuana. AMENDMENT OF THE INFORMATION [ 58 ] Section 601(2) of the Criminal Code confers jurisdiction upon a trial judge, ex mero motu, to amend counts in an indictment to make them “conform to the evidence” adduced at trial. Subsection 4.1(

a) specifically provides that an amendment that addresses “[a] variance between ... a count ... and the evidence taken ... with respect to ... the time the offence is alleged to have been committed” is “not material”. [ 59 ] The evidence adduced at the trial of Mr. Vu’s charges has established that, even though the marijuana grow operation at the Verbena Residence was not discovered and seized until April 23, 2009, it was present there throughout March of 2009—a month during which Mr.

Vu admitted he was in “continuous” sole occupation of the house and unaccompanied (but for the possibility of an occasional overnight visit by his common law wife). Non-material amendments to counts 1 and 2 on Information 82185-C2 that strike out the words “on or about the 23 rd day of April, 2009” from each and substitute, in their place, the words “in or about the month of March, 2009” will bring the Information into conformity with that evidence.

I order that Information 82185-C2 be amended as aforesaid, and that the amendments be endorsed on the Information as part of the record such that this proceeding may continue “as if the ... count[s] had been originally preferred as amended”: s. 601(7). [ 60 ] Even though the making of non-material amendments of this kind does not require me to consider possible prejudice resulting to Mr. Vu from them (since s. 601(4)(

d) does not apply to s. 601(4.1) amendments), I will say that it can hardly come as a surprise to him that, at his trial, the court would take an interest in the status and whereabouts, during March, 2009—a few short weeks before seizure— of the many manifestly tall and mature marijuana plants shown in the Crown’s photographic evidence. I say this particularly because, again, Mr. Vu gave clear evidence that, up to the end of March, he lived continuously at the Verbena Residence. DISPOSITION [ 61 ] Based upon all of the foregoing, I find Mr. Vu: (

a) guilty of production of a controlled substance, namely marijuana (count 1); and (

b) guilty of possession of a controlled substance, namely marijuana, for the purpose of trafficking (count 2). [ 62 ] Order accordingly. _______________________ Thomas S. Woods, P.C.J. [1] The persistent use of two spellings for the prohibited substance—one common and one strikingly obscure—is difficult to understand. The plurality creates the unnecessary risk that online searches for cases and other information concerning the drug will be under- inclusive and return incomplete results to those who do not remember to employ both spellings, as alternatives, in their search terms. To what purpose?

Like almost everyone else in the world (except the Parliament of Canada when enacting the Controlled Drugs and

Substances Act ), I shall substitute a “j” for the Mexican Spanish “h” and refer in these reasons to the illicit drug at issue in this case as “marijuana”.