R. v. Daley Date:, 2013 BCPC 13

Citation: R. v. Daley Date: 20130110 2013 BCPC 0013 File No: 82792-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT JOHN DALEY ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: K. MacWilliam Counsel for the Defendant: L. Kompa Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 7, 8, and 10, 2013 Date of Judgment: January 10, 2013

[ 1 ] THE COURT : Mr. Daley is charged under Information 82792-1, which was sworn on January 19th, 2010. It charges him with two offences under the Controlled Drugs and Substances Act . Count 1 charges him with production of a controlled substance, namely, cannabis marihuana, contrary to s. 7(1). Count 2 charges him with possession of a controlled substance, cannabis marihuana, for the purpose of trafficking contrary to s. 5(2). The alleged offence date is September 22nd, 2009. [ 2 ] The matter came on for trial this week.

We have heard approximately two full days of evidence and a partial day's worth of submissions in closing argument by Crown counsel, Ms. MacWilliam, and defence counsel, Mr. Kompa. [ 3 ] I start by making two preliminary observations. Firstly, these are oral reasons for decision.

Substantively they will not change but in the event that they are ultimately transcribed I am reserving the right to correct them for grammar, for syntax, and for disfluencies of the kind that tend to creep into one's oral reasons when one has little time to put one's words into a lucid and fluid form. [ 4 ] The second preliminary observation is more important and it is that this criminal prosecution, like all criminal prosecutions, involves an important principle of criminal law regarding where the onus rests. In our society and under our law Mr.

Daley, like any accused person, is entitled to the benefit of the doubt. He is presumed to be innocent unless proven guilty and it is incumbent on the Crown in this and all cases to establish all of the essential elements of the offences it seeks to prove beyond a reasonable doubt. [ 5 ] These are drug offences. Count 1 is the production count. The subject illicit substance is cannabis marihuana. What must the Crown prove in order to make out a case against Mr.

Daley under s. 7(1) of the Controlled Drugs and Substances Act to establish beyond a reasonable doubt that he produced cannabis marihuana? [ 6 ] "Produce" is a defined term in the Controlled Drugs and Substances Act . We find it in s. 2(1), the relevant portion of which reads, "cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained". As some of the cases to which I was referred today make plain, cultivation connotes the bestowal of labour and attention upon the subject crop so to speak.

That is reflected in the reasoning of the Court of Appeal in the Powell decision to which Mr. Kompa referred me. It is reflected in many other cases. [ 7 ] The cases show that the act of cultivation of a controlled substance is a continuing offence. It covers the activities that sustain marihuana plants right from the initial seeding or cloning through to harvest and maturity. This accords with common sense. In order to grow from its beginnings to maturity, a crop must be tended in some fashion. The bestowal of labour and attention upon a crop assures its continued growth.

That is what cultivation means and that is what the Crown seeks to prove here. [ 8 ] This is a case in which there is no direct evidence of cultivation. Ms. MacWilliam for the Crown did not call any evidence of direct observations of Mr. Daley tending to the marihuana crop in the basement of the house in which he resided.

Rather, the Crown seeks to establish cultivation, that is to say, production of cannabis marihuana in this case by recourse to circumstantial evidence, circumstantial evidence being an aggregation of proven facts that the Crown argues leads to an irresistible inference of the fact of production. [ 9 ] Count 2, the second count that Mr. Daley faces, is possession of marihuana for the purpose of trafficking. The offence is referenced to s. 5(2) of the Controlled Drugs and Substances Act .

Again, possession is a defined term in the Controlled Drugs and Substances Act ( "CDSA" ) and when we go to s. 2(1) of that statute we are in turn referred out to the Criminal Code and in particular, s. 4(3) of the Criminal Code which describes that possession means:

(3) For the purposes of this Act [and that includes the CDSA] , (

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.... [ 10 ] And here again, while I think Ms. MacWilliam was not prepared to let go completely of the idea that perhaps it might be contended that there was personal possession, this is in its essence a case upon which the Crown's success or failure on this count will turn on whether or not it establishes constructive possession. [ 11 ] There was no direct evidence of Mr.

Daley manually handling the marihuana at issue in this case. There was no evidence of him being found with it on his person. Rather, once again, the Crown seeks to have the Court find him in possession by pointing to a cluster or a constellation of proven facts that give rise to an inference, an irresistible inference that he was in possession of the subject marihuana, an inference that displaces any other possible exculpatory inference.

Of course inhere in the notion of possession as contemplated by s. 4(3) of the Criminal Code (and by reference in s. 2(1) of the CDSA ) are the sub-topics of knowledge and control. It is the convergence of knowledge and control that animate the notion of possession as it is understood in these contexts. [ 12 ] There is an old case, well not so old I suppose, called R. v. Fisher , 2005 BCCA 444 where there is a statement given regarding constructive possession of illicit substances that is of general application. It was Mr.

Justice Smith, concurred with by Justices Rowles and Donald, who said: [24] As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manual handling. To establish constructive possession, it was incumbent upon the Crown to prove beyond a reasonable doubt that the appellant knew of the presence of the cocaine and that he had some measure of control over its location. [ 13 ] So there we see the converging concepts of knowledge and control; not absolute knowledge, not absolute control, but an

awareness of the presence of the substance and some measure of control over its location. [14] Of course this is not a charge of simple possession, it is a charge of possession for the purpose of trafficking and there we getinto the distinction between possession for personal use and possession for commercial use. That distinction turns on quantity and wherean illicit substance is possessed by an accused person in a quantity that is demonstrably in excess of what would be reasonably requiredfor personal use, an inference of possession for the purpose of trafficking necessarily follows.

For that proposition, uncontroversialthough it is, we can turn to, among other cases, R. v. Budd, [2008] B.C.J. No. 2793 a decision of the Supreme Court. [15] Now, a few words about the law governing the reception and analysis of circumstantial evidence. [16] As I have said, the Crown's case on both Counts 1 and 2 against Mr. Daley turns on, is built on, circumstantial evidence. [17] In a case called R. v.

Butler decided in 2007 by the Court of Appeal (2007 BCCA 526), the Court sought to summarize the lawbearing upon circumstantial evidence and the old, old decision known as Hodge's Case, (1838), 1838 CanLII 1 (FOREP), 2 Lewin 227,168 E.R. 1136 which has in some respects been reformulated and restated by the Supreme Court of Canada in a case called R. v. Cooper(1977), (SCC), [1978] 1 S.C.R. 860.

Citing Cooper the Court in Butler said: 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] So the court here is faced with an exercise of inference drawing. There is a substratum, a base or a foundation of proven facts. Those proven facts taken together must compel an inference of guilt that is incompatible with any exculpatory inference.

Each of theindividual facts constituting the substratum need only be proven on a balance of probabilities but the inference must be an inference thatsatisfies the higher standard of beyond a reasonable doubt. As I have said, it is sometimes referred to as an irresistible inference. That iswhat the Crown seeks to establish in this case. [19] Referring to the body of facts in respect of both of Count 1 and Count 2, the Crown invites the Court to draw the necessaryinferences so as to find and conclude that a case has been made out against Mr.

Daley for both production and possession for thepurposes of trafficking, inferences that are the only reasonable inferences that can be drawn. That is the standard to which the Crown isheld. [20] Some reference was made by Mr. Kompa in his submissions to the fact that of course in our criminal justice system under theprinciples that govern it there is no onus on an accused to prove his innocence. There are, however, circumstances in which theaggregation of proven facts compels an inference that is so powerful that in order to rebut the inference, some evidence must be tenderedby the accused person. [21] R. v.

Jenkins (1908), (BC SC), 14 C.C.C. 221, relied upon by the federal Crown here, states that propositionrather baldly in this way: It is true that a man is not called upon to explain suspicious things but there comes a time when circumstantial evidence havingenveloped the man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or standcondemned. [22] That extract comes from a case that was decided in 1908 but it remains good law for all that. It was recently cited in a casecalled R. v. Dae, [2010] B.C.J. No. 2136 (C.A.). Madam Justice Prowse for the Court stated: [20] ...

The trial judge was aware that he could only find knowledge on the part of Mr. Dae if it was the only reasonable inference tobe drawn from the evidence. In his view, the evidence called by the Crown in this case was sufficiently compelling to invoke theprinciple 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 "therecomes a time when, circumstantial evidence having enveloped a man in a strong and cogent net-work of inculpatory facts, that man isbound to make some explanation or stand condemned".

I agree with the trial judge that this was one of those cases. [23] One does not take a view of evidence of this kind on a fact-by-fact basis, but one looks at the facts in the aggregate. As thelearned authors of The Law of Evidence in Canada, Sopinka, et al. have stated, "Each piece of evidence need not alone lead to theconclusion sought to be proved. Pieces of evidence each by itself insufficient may however when combined justify the inference that thefact exists". [24] Much has been said in submissions today about inference and much has been said about conjecture.

The distinction betweenthe two in a case like this is of critical importance. It is an easy distinction to state but sometimes difficult to apply in practice. It speaksto the Court's method of reasoning.

There is an old House of Lords case called Caswell against Powell Duff & Associated Collerieswhere Lord Wright made this observation at p. 170: If there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is merespeculation or conjecture. [25] I will return to that notion because some of what was advanced to me in submissions concerning inferences in my respectfulview fits more easily under the rubric of conjecture and speculation. [26] Now, what are the facts in this case? On September 22nd, 2009, a house fire occurred at an address in Maple Ridge.

Theaddress was 24186 116th Avenue. This was a rented property, a rented house on a piece of acreage. The house is situated in closeproximity to another house belonging to the landlord, Ms. Spear (phonetic). Ms. Spear was the first Crown witness. [27] Ms. Spear's evidence was that the subject house was rented to the accused, Mr. Daley, and that he had been there for some tenmonths prior to the offence date of September 22nd. There is no reason to doubt or question Ms. Spear's evidence in that regard.

[ 28 ] Ms. Spear's evidence was that Mr. Daley had dominion so to speak over the house, the house at 24186 116th Avenue. He lived there alone. His comings and goings and daily activities were readily observable by Ms. Spear who could see his house across a short distance from her own window. She saw that he had friends come to visit periodically, as one would expect, but she also testified that he was the sole occupant of the house. [ 29 ] The marihuana plants that were ultimately discovered in that house were in the basement.

The basement communicated with the upstairs portion or the above basement portion of the house by way of a door that was not locked or lockable. Ms. Spear's description of the house as it happens turns out to be rather important. She described it in her testimony and confirmed in her cross-examination that it was a “two-storey” house. She occasionally used the expression "split level with a basement” which of course means that in total there were three levels.

The marihuana plants at issue in this case were found in the basement. [ 30 ] I note in passing (and not because it is terribly important but more for reasons of completeness) that there was another basement-like feature of this structure that was accessible only by way of an outside door that came to be called the cellar in the course of the trial. In my respectful view its importance is near to non-existent and I will say very little if anything more about it. [ 31 ] The basement, however, is of very great importance.

As I say, it is readily accessible from the upper two levels of the house through an unlocked door and it is also accessible through a separate door from the outside. [ 32 ] Ms. Spear's evidence that Mr. Daley resided in this structure, in this building, in this house, is supported by other evidence including the fact that an inhaler containing prescribed medication, prescribed for Mr. Daley, was observed and found and seized in the house. On the night in question, when a house fire occurred in that house and when police were present controlling the scene, Mr.

Daley at one point approached one of the officers controlling the scene and in a spontaneous utterance whose admissibility was not challenged or questioned, Mr. Daley identified himself as the renter of that house. So without doubt and without question, the house in issue was a house over which Mr. Daley had the usual rights of possession of a tenant and that he occupied without any other occupant. [ 33 ] Similarly, with the exception of the odd comings and goings of friends, he was the only person that Ms.

Spear, the landlord who lived so nearby and who had such easy ability to observe, saw to be present in the house over the course of the ten months leading up to the events of September 22nd. [ 34 ] Now, perhaps commencing on the 21st of September and continuing on into the early morning hours of the 22nd, a house fire occurred at the house in question. Before too long, significant portions of the upper part of the structure were engulfed in flames and the house was in due course quite severely damaged by the house fire.

The Fire Department responded to the fire; the fire was ultimately extinguished but substantial damage was done to the house as reflected in the photographs of it, inside and out, that were tendered at trial by the Crown. [ 35 ] In the course of fighting the fire, Fire Department staff recognized what appeared to them to be a marihuana grow operation in the basement of the house. [ 36 ] Police were called and an investigation was commenced and in the course of that investigation -- in circumstances where the scene was secured throughout -- police found in the basement of the house a large number of pots containing marihuana plants in the vegetative stage, larger than simple clones but not yet mature enough to be said to be in the flowering or budding stage. [ 37 ] Constable Quelch took responsibility for handing to Constable Wilcott each of the plants as they were removed from the basement.

He testified that he kept a running tally of the plants as he pulled them out and handed them to Constable Wilcott to seize them. [ 38 ] Constable Quelch's evidence was that that running tally came to a total of 165 plants; however that number is not reflected in his officer's notes. It is reflected in the Report to Crown Counsel that he prepared and there was argument as to the reliability of Constable Quelch's count. I am satisfied and I find as a fact that the number of plants was as Constable Quelch said, 165.

Of course it would have been better if he had a contemporaneous note of that number but his evidence under what I would say was a pressing cross-examination was firm that he did maintain a running tally and while he would not say he had a perfect recollection of the number, he was confident that his number 165 was correct. [ 39 ] I heard nothing along the lines of what one sometimes hears in cases like this -- about great gaps of time between the preparation of the Report to Crown Counsel and the events it purports to describe -- to undermine my confidence in the Constable's recollection.

If there had been things of that sort that might shake my confidence in his recollection, I am sure that in his thorough cross- examination Mr. Kompa would have raised them. He did not. So I find as a fact there were 165 potted plants in the basement of the house. [ 40 ] Also in the basement were located three large plants, mature plants, plants that the expert witness Constable Haas opined were likely to be "mother plants" for the purposes of cloning. [ 41 ] The basement was fitted out with other indicia of a marihuana grow operation.

There were eight high-pressure sodium light bulbs with shields, not all of them in place, but a number at least still suspended from the ceiling. The walls and ceiling were covered with white Mylar sheeting which was said by the expert to be employed in marihuana grow operations typically to maximize the reflected light and enhance the lighting conditions within the grow operation. There was ventilation equipment: compressors and ventilation piping.

Altogether, there was what the expert Constable Haas described as a reasonably sophisticated marihuana grow operation set up there. [ 42 ] Some of the indicia that one might expect to see figuring in the evidence in a prosecution of this kind were not present. There was no evidence for example of nutrients. There was no evidence of a watering system, either automated or manual. However, one must not lose sight of the fact that this investigation was conducted under unusual circumstances. It was conducted shortly after a house fire had been extinguished by the Fire Department.

[ 43 ] The water in the basement was knee deep, according to Constable Quelch and others. There were parts of the structure that had been caused to collapse by reason of the intervention of the Fire Department and the fire itself.

Hydro was cut off to the building as a routine part of dealing with the fire so the lighting conditions for the purposes of carrying out the investigation were less than ideal. [ 44 ] These unusual circumstances are pointed to by the Crown in support of its contention that the Court should not be unduly concerned about the absence of some evidence that one might otherwise expect (and I forgot to include among them ballasts and capacitors). [ 45 ] I want to deal now with a fact that looms large in the submissions of Mr. Kompa on behalf of Mr. Daley. That is the evidence of Ms.

Spear regarding her practice of attending at the house on the 1st of August and on the 1st of September to pick up rent cheques from Mr. Daley. [ 46 ] Ms. Spear gave evidence of having conducted a "walk-through" on those occasions and she confirmed in her testimony under cross-examination that in the course of the walk-through, she made no observations of any grow operation related infrastructure at all. [ 47 ] I have looked back at my notes and taken the time and trouble to refresh my own recollection of the nature of her testimony in this important area.

The words “upstairs” and “downstairs” were used exclusively in the questioning of Ms. Spear about that walk- through. In general throughout the trial when discussion turned to the basement area where the alleged grow operation was found, the word “basement” was used. I repeat that Ms. Spear in describing the building in her direct evidence very early in her testimony described it as a two-storey house with a basement. [ 48 ] I cannot in the circumstances confidently conclude, as Mr. Kompa would have me conclude, that Ms. Spear included the basement in her walk-through.

She was asked questions about carrying out a walk-through in the upstairs and downstairs portion of the house that she herself said was a two-story house with a basement. So the fact that Ms. Spear did not see or detect any grow operation infrastructure or marihuana plants is not conclusive of the absence of those items, given the way in which she was questioned about the areas of the house that were subject to the walk-through. [ 49 ] Has the Crown proven production in its case against Mr. Daley?

Well, what are the facts upon which the Crown invites me to draw the inference of production given that this is a case built on circumstantial evidence? [ 50 ] The plants as revealed in the photographs and as confirmed in the testimony of the Crown witnesses, including its expert, were approximately four to five weeks in age.

They were to all appearances -- apart from the three so-called "mother plants" -- in a healthy condition, notwithstanding the fact that the house fire had occurred shortly prior to the commencement of the investigation. [ 51 ] Constable Haas, the Crown’s expert witness, gave evidence about the things that need to be done in order to maintain a healthy crop. A crop must be watered at least twice a day. It must receive nutrients at least once a week; that was her testimony. She was the only expert to testify.

Her evidence was not successfully challenged in these or virtually any other areas. [ 52 ] The surrounding infrastructure -- admittedly not in operation at the time that police arrived to carry out their investigation given the fact that there had been a house fire and the need to interrupt the supply of power -- as reflected by the Mylar sheeting, the coolers, the piping, ventilation system, et cetera, the lights, all reveal the conditions congenial to growth of an indoor crop. Mr.

Daley was the only uniform, regular and entitled presence in the building over the course of the ten months leading up to the time of the house fire. [ 53 ] I am satisfied that these proven facts support an inference sufficient to persuade me beyond a reasonable doubt that he involved himself, that is to say, he was an active participant in the maintenance of that marihuana crop. He lived in the house. He had free and unrestricted access to the basement. The plants were a minimum of four to five weeks of age. The infrastructure is demonstrably one that could not have been created overnight.

The plants were healthy. The plants had been recently watered. [ 54 ] I cannot conceive of how all of that could be without Mr. Daley's “active participation” (as the cases say). Nor am I able to draw any other inference than that he took some hand in production from the proven facts. There is no competing inference based on proven facts to refute an inference of his active participation. [ 55 ] Mr. Kompa invited me to consider possibilities such as the plants having been recently placed in the premises, perhaps by others. But there are no proven facts from which I can draw that conclusion.

That is classically conjectural or speculative and I am not permitted to embark on an exercise of conjecture or speculation. Rather, I am required by the law to base my inferential reasoning on the proven facts. There is no substratum of proven facts to support the alternative explanations that Mr. Kompa sought to have me consider. [ 56 ] In R. v. Vu , 2002 BCCA 659 , one of Mr. Kompa's cases, something similar happened.

Paragraph 26: [26] The appellant argued that other inferences might be drawn from the proven facts such as the appellant being enticed to the growing operation as a potential recruit, or that he had been brought there for the first time by the other people with him. There was no evidence to support either of these asserted alternative inferences . [emphasis added] [ 57 ] And that is the problem with the alternative inferences that Mr. Kompa has invited me to draw.

If there are no proven facts to serve as their foundation, then they are not inferences, they are simply speculations and speculations have no place in this process. [ 58 ] So I find that for the purposes of the first count on the Information, the production count, the proven facts support an irresistible inference, an inference not overtaken by any competing exculpatory inference, that Mr. Daley had some active participatory involvement in the raising of the marihuana crop that was in the basement of the house in question. [ 59 ] I turn to possession for the purposes of trafficking.

[60] As I indicated earlier, possession is about knowledge and control on the Criminal Code definition that is imported by referenceinto the CDSA. [61] As R. v. Pearson, 2000 BCCA 216 -- case relied upon by the Crown -- says, the fact that a person has lawful dominion overpremises as a renter or as an owner can support an inference of possession of subject matter within those premises. The decisionappealed from in Pearson was challenged in that regard.

An alternative inference was offered and the Court found that the trial judgehad not erred in drawing that inference from the fact that the accused there was the sole renter and occupant of the premises in question. [62] Again, we are dealing in this case with circumstantial evidence. We are looking at this case through the lens of constructivepossession and the question I must answer is: Do the facts as established compel an irresistible inference that Mr.

Daley had knowledgeof the presence of the marihuana in the basement of the house he rented and had some degree of control over its presence there? [63] It must be recalled that as the R. v. Abdel-Malek, [1997] B.C.J. No. 999 (C.A.) case states: [10] ...

Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the objectin question...As the trial judge recognized, it is enough that the appellant had the right to grant or withhold his consent to grow operation.As the co-tenant he had the right to forbid illegal behaviour in premises for which he was responsible. [64] That passage has direct application to the case at bar. Mr.

Daley had possessory rights over and control over the goings-on inhis rented premises including the basement which was accessible by an unlocked door. [65] It is difficult to imagine how one could sensibly argue that a person residing in a relatively small house with a basement readilyaccessible through an unlocked door could be unaware of the presence of a moderately sophisticated marihuana grow operation completewith fans and Mylar sheeting and plants numbering in the range of 165 and high-intensity sodium lights and shields and piping forventilation.

For it to be contended that that could be unfolding in a house rented by Mr. Daley without his knowledge and without hisconcurrence, is simply untenable. [66] That the quantity of marihuana bespeaks a purpose for possession being a purpose for trafficking was addressed in the unshakenevidence of Constable Haas. Her testimony was that the amount of marihuana in place at the house in question was vastly in excess ofwhat even a heavy user would require for personal use.

She gave dramatic testimony in the form of calculations about the time that itwould take a heavy user to go through the amount of smokeable or edible marihuana resulting from this operation that leaves the Court inno doubt that the purpose of the possession was for trafficking. [67] Constable Haas also gave evidence of substantial street values.

Using conservative methods of calculation -- conservative withrespect to both the yield of the individual plants and then the amounts that the production from those plants would command on the street-- Constable Haas spoke from her extensive experience in investigating these kinds of operations when she said that a 165-plant operationlike this yielded sufficient commercially saleable marihuana to command, at the lowest, $15,000 on the street on the per pound sale basisand that the low end of her range for per gram was $47,000. I will not even make reference to the high end because I do not need to.

Even at these low end numbers, I am left with no question in my mind about the purpose for which this marihuana was possessed. It waspossessed as a cash crop. [68] In the course of submissions, I queried Ms.

MacWilliam as to whether or not dropping down to the 98-plant number that mighthave been the basis of an alternative finding as to the quantity of plants, even there -- and I stress that I found that there were 165 plants --but even there the amount of marihuana that would be generated by that number of plants so greatly exceeds what Constable Haastestified would be the requirements of a person for personal use even at the outer limits of what is normal personal use, that even if theplants had only numbered 98 or 100, I would not have drawn a different conclusion. [69] Constable Haas was cross-examined closely by Mr.

Kompa, again with some hypotheticals with much larger per-day usagefigures than the two grams per day that Constable Haas used. Constable Haas did not accept the premises of counsel's cross-examiningquestions in that regard. She held firm to her view that two-gram per day usage was at the outside limit of what one would expect to findin even a very heavy user. While Mr. Kompa put hypotheticals to Constable Haas, he was not able to put any evidence to her, anyevidence of actual consumption in excess of that, to challenge her testimony. She held firm to that testimony. [70] Mr.

Kompa also cross-examined Constable Haas at length about medical marihuana, about licensing regimes for medicalmarihuana, about the numbers of marihuana plants that one can conceivably have in one's possession with the necessary licences. Hereferred to this in his final argument, in order to try to persuade the Court that there was an alternative possible explanation for Mr.Daley's possession of the plants in question, even up as high as 165 plants. [71] Here again, we are in the realm of speculation in circumstances where inference based on proven facts is necessary.

There isnothing in this case by way of proven facts to bring into play the prospect that Mr. Daley or anyone else associated with the premises inquestion had a licence to grow medical marihuana. That was referred to at length in the course of hypothetical based questioning of theexpert and then in submissions, but there is no evidence of any medical marihuana involvement in the facts of this case.

So, for me toapproach the inferences that I have been invited by the Crown to draw with scepticism based on medical marihuana possibilities wouldbe for me to allow a speculation to attain the status of an inference and thereby compete with the other inference that does arise from theproven facts. That is simply something that is not available to me on the law as the passage from the Vu, supra, case I just read amoment ago and other cases show. [72] I will take this opportunity to disagree with Mr.

Kompa on his contention that in some way it is part of the Crown's burden inseeking to prove possession for the purpose of trafficking to prove that there is no licence in place that would constitute a legaljustification for possession. [73] Mr. Kompa made reference to a case that he could not identify with precision, a case that nevertheless seems to be known toMs. MacWilliam, a case called R. v. Ruiz, 2012 BCPC 457 , [2012] B.C.J. No. 2780 (Prov. Ct.) decided by my brother JudgeSt. Pierre.

I have not seen the case, but I do not understand it to be a case that has in some way enlarged the Crown's duty in a possession

for the purposes of trafficking prosecution to add to all of the essential elements a new essential element, that being that there is no medical marihuana based defence available to the accused. At the end of the day if medical marihuana licensing in a case of this nature is going to rear its head, it will do so as a defence and only as a defence. [ 74 ] No defence evidence was called of any kind (including evidence of the presence of a medical marihuana licensing justification for possession in this case). Nor was it the duty or the obligation of the Crown to establish the absence of such licensing.

So, with all respect, I reject the submission of Mr. Kompa that in some way it was incumbent on the Crown to prove the absence of a defence that the accused might raise as a shield to the prosecution. [ 75 ] So, Mr. Daley, would you please stand up? [ 76 ] On Information 82792-1, on Count 1 I find you guilty of the offence of unlawfully producing a controlled substance to wit: cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act .

On Count 2, I find you guilty of the offence of possessing a controlled substance to wit: cannabis marihuana, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act . (ORAL REASONS FOR JUDGMENT CONCLUDED)