R. v. Ferris Date:, 2011 BCPC 52

Citation: R. v. Ferris Date: 20110214 2011 BCPC 0052 File No: 83926-3C Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DANIEL CARL FERRIS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: C. Choi Counsel for the Accused: B. Bagnall Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: November 22, 23, 24 and 25, 2010 Date of Judgment: February 9 and 14, 2011 [ 1 ] THE COURT : The accused is charged on a multi-count Information with production of marihuana and possession of same for purposes of trafficking, pursuant to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act ("the Act") respectively and in addition five firearms offences as follows: (

a) Count 5: possession of a Mossberg shotgun, Model 500A, without a valid licence, contrary to s. 91(1) of the Criminal Code ; (

b) Count 6: possession of a Smith & Wesson handgun, Model SW 40V, without a valid licence, contrary to s. 91(1) of the Criminal Code ; (

c) Count 7: possession of a loaded prohibited firearm, the Smith & Wesson, contrary to s. 95(1) of the Criminal Code ; (

d) Counts 8 and 9: careless storage of both the handgun and shotgun, contrary to s. 86(1) of the Criminal Code . [ 2 ] At trial, Crown filed various Exhibits -- A, B and C -- that clearly establish that the two guns functioned, were either a non- restricted weapon (the shotgun), or a prohibited weapon (the handgun), and that the accused was neither the registered owner of same or properly licensed to possess them. There is therefore no question that the only issue for me to decide in this case concerning the two guns is whether Crown has proven beyond a reasonable doubt that the accused legally possessed or stored these two guns. I will deal

with counts 5 to 9 at the conclusion of these reasons. [ 3 ] All offences are alleged to have occurred on April 8th, 2009 in Coquitlam, British Columbia. [ 4 ] On April 8th, 2009, the RCMP believed that electricity was being stolen at the residence and this led to their obtaining a search warrant this day to allow them to enter and search the premises. [ 5 ] On April 8th, 2009, a team of seven RCMP officers, led by Corporal Stanford, executed a search warrant at 632 Claremont Street in Coquitlam ("the residence") and arrested the accused who answered the rear door of the residence at about 1:05 p.m. [ 6 ] The team comprised of Officers White, the lead investigator; Constable Mills; Constable Sharma; Constable Boechler; Constable Lam, Constable Wiley who is the Exhibits Clerk; and lastly Corporal Stanford being in charge of the team.

All of these officers, save Constable Boechler, testified at the trial before me. [ 7 ] Constable White had conducted some brief surveillance on the residence on April 7th, 2009 and had observed a 2008 black Ford F350 pickup in the carport. He later ascertained the truck was registered to one David Roy Horton who possessed a BC driver's licence, and according to the Vehicle Registration records, lived in Abbotsford. Constable White at some point learned that Mr.

Horton had a criminal record of possession of some prohibited substance for purposes of trafficking. [ 8 ] Constable White also conducted some brief surveillance on the morning of April 8th, commencing at 6:00 o'clock a.m. Immediately on entry into the residence this day, Constable White testified there was a smell of marihuana everywhere. [ 9 ] I should also add that Constable White further testified at trial that he had tried unsuccessfully to contact Mr. Horton; he was unsure when, but that he did not get very far. He had left messages for him.

The sense of his evidence at trial was that he did not get any responses. He said he had no grounds to arrest Mr.

Horton. [ 10 ] Very shortly after their entry, the police discovered a large, very sophisticated, and clearly a commercial grow operation ongoing on both the upper and lower or basement floors of the residence, and comprising 1,690 marihuana plants in various stages of growth: 562 mature plants in the basement grow room number one, and some 1,128 six-inch clone plants on the main floor in grow room number three. [ 11 ] The police also discovered the two guns in bedroom number one on the upper or main floor of the residence.

This bedroom is so described in a diagram prepared by Corporal Stanford and marked as Exhibit E on an earlier voir dire during the course of the trial and at trial by agreement. [ 12 ] In fact, all Exhibits on the voir dire by agreement of counsel following my decision on the voir dire became Exhibits and evidence at the trial. [ 13 ] The residence is well described in a series of photographs taken by the police commencing at or about 1:40 p.m. on April 8th, 2009 as part of their investigation in this case which photos were marked as Exhibit N. It is situate on a lot that is higher at the back than the front.

When approached from the front, there is one main or front entrance door and immediately to the right, an open one-car carport area. In this carport there is a door that is located on the left side of the open carport that also leads into the residence. When the police attended, this door was locked and they had to open it with a ram.

Other than this, there are no other side doors in the residence. [ 14 ] Seen from the rear, the upper or main floor appears to be perhaps three to four feet above grade level and there is a wooden deck which when viewed from the rear or facing west stretches approximately two-thirds of the length of the residence, starting at the north side and ending approximately six to eight feet east of the single rear door on the back of the house which opens out onto the rear wooden deck. [ 15 ] From the photographs, especially number 8020, it appears there are no stairs from this deck down to ground level or the backyard area.

Rather, access to the deck is pursuant to a sloping wooden ramp constructed commencing about three feet south or to the right of the north end of the deck leading down from the deck. [ 16 ] Corporal Stanford's diagram (Exhibit

D) and the police photos (Exhibit N), disclose that the main or upper floor of this home comprises some six rooms apart from a closet or two, and stairs leading to the lower or basement floor as follows: 1. the kitchen having as an entrance the sole rear door of the residence; 2. a large room running the width of the residence on the north side called grow room number two. This room has an entrance from the kitchen blocked off with black plastic and foil as seen in photo 8036, and a second entrance into the upstairs hall.

There is also a white door open in this photo on the first above described entrance; 3. bedroom number one located on the front or north side of the residence having a single door leading into the upstairs hall; 4. bedroom number two located on the southwest front corner of the residence having a door or opening also into the hall area immediately beside the door to bedroom number 1; 5. grow room number three located on the southeast rear corner of the residence; 6. a bathroom located at the rear of the residence to the right of grow room number three and to the left of the kitchen when the residence is viewed from the rear. [ 17 ] The kitchen on the upper floor was searched.

Two black bags containing marihuana shake were located in the freezer, together with some frozen food.

[ 18 ] There was a dog cage as well in the kitchen. There is some evidence that a dog was present at the residence at the outset of the search and that Corporal Stanford called among others an animal control officer to take charge of it. There was a dog cage as I have said in the kitchen. [ 19 ] The kitchen counter had dishes and pots and pans on it. The kitchen cupboards were stocked with certain food items including pasta and cereal. [ 20 ] In the fridge, the police located various items including milk, eggs, various supplements and condiments such as ketchup and mustard.

Milk and eggs are in my view not the type of foodstuffs one would keep or expect to find in a home that was not in regular use. That said, Corporal Stanford testified that he detected a strange smell in the kitchen as if food had been left out for a while and was starting to spoil. He did not testify that he located the source of this smell. [ 21 ] He concluded, apparently due to its messy state with items all over and the fact that the kitchen floor was filthy dirty, that it did not appear the kitchen was being used very often. Nonetheless, he said it was well stocked.

I took this to mean with food items. [ 22 ] During the search of the kitchen, the police located a black bag I think in plain view on top of the dog cage containing inside eight 40-calibre rounds of ammunition suitable for use in the 40-calibre handgun referred to in certain of the counts before the Court. There is no evidence the ammunition, however, was in plain view.

As well, a score sheet was located on the kitchen counter and a small Ziploc bag of marihuana as well on the counter and possibly some marihuana shake. [ 23 ] There is a breakfast nook area described by Corporal Stanford at the residence immediately to the left of the kitchen door as one enters the residence from the back porch or deck.

Therein the police found a workout ball of the sort typically used for exercising and a chin-up or dip bar (see photo 8038). [ 24 ] I should now mention two other items located elsewhere in the search on April 8th just inside the front door on the lower level: a heavy punching bag, three to four feet in length, suspended from a heavy tubular stand was also located. In bedroom number one, on the dresser, Corporal Stanford located a box of syringes and vials which he believed to be steroids.

The same were never sent for testing and there is no scientific evidence offered at trial supportive of Corporal Stanford's belief. [ 25 ] The accused, Mr. Ferris, did not testify at the voir dire or at the trial before me, nor is he required to do so. The Crown bears the onus of proof in this case. Mr. Ferris is presumed innocent. Nonetheless, he was present in my courtroom throughout the proceedings over some four days as I recall and I observed him daily within the dock.

He clearly appears to be of a very strong build and appears a well-developed young man, the sort of man who would not be a stranger to heavy workouts. [ 26 ] Corporal Stanford testified that there were several wardrobes located in the breakfast nook area containing what he believed to be male clothing. In one or on top of it, the police discovered a book relating to growing marihuana. [ 27 ] Grow room number two is the former living room of the residence and is very easily accessed from the kitchen.

The fireplace opening had been blocked off with cardboard and red tape; the two front windows on the west wall had been covered over with plywood and plastic. Corporal Stanford said that there were no plants in this room. It appeared to have been recently harvested. It was clearly set up to be for use in production of marihuana.

The lights were on in this room when Corporal Stanford entered it. [ 28 ] In grow room number three located on the main floor of the southeast corner of the residence, 1,128 marihuana clone plants approximately six inches high were found growing in soil in red cups situate on wooden shelving.

These were in the pre-budding stage. [ 29 ] The linen closet, contiguous to grow room number three, appeared to contain plant nutrients. [ 30 ] In the upstairs bathroom, Corporal Stanford observed male toiletries, namely, shaving cream and razors, some on the bathroom counter and some under the sink, as well as soap and shampoos in the bath area. One photo taken by Constable Lam shows a towel on the floor and Corporal Stanford said in cross-examination he had not touched it to see if it was damp. [ 31 ] In bedroom number two being used as a living room, the police located several score sheets on the coffee table.

Constable Wiley testified that a score sheet is used to monitor the light and nutrients given to marihuana plants. In addition, the police located here a calendar containing a

schedule for the growing of marihuana, and three current marihuana-themed magazines with April or May 2009 edition dates; both items were on the coffee table. [ 32 ] Grow room number one located in the basement and comprising approximately three-quarters of the lower level of the residence was observed by Corporal Stanford. The lights were off. Therein, he located some 562 marihuana plants in the budding stage, all about 21 inches high. [ 33 ] The basement contained -- aside from the front entry or hall area -- a basement chemical room.

At the rear, the aforementioned large grow room number one on the west side of the residence was separated from the chemical room with a plastic flap over the door opening. There was no door in place and there was a further room and ballast room near the basement stairs leading up to the kitchen. [ 34 ] The residence, as depicted in the photos, is not large.

None of the rooms had, on April 8th, 2009, locked or secured interior doors in the sense that a person, for example in the kitchen area or say bedroom number one on the upstairs level, would be prevented thereby from easily and quickly due to the size of the home alone having ready access to any of the rooms on either floor.

None of the three grow rooms were obviously locked as seen in the photos thereby preventing access to them. [ 35 ] It is abundantly clear to me, considering all of the evidence in this case and especially the photos and the testimony given by the RCMP officers who were inside the residence or, as in the case of Corporal Uzelac, the member offered at trial as an expert on production, trafficking, consumption and pricing practices with respect to marihuana who viewed the above photos and film, that the grow operation underway at the residence, while not fully automated, was a highly sophisticated one, clearly having involved a great deal of effort to construct it and operate it.

[ 36 ] The 562 plants located in the basement grow room number one and the 1,128 plants in the upstairs grow room number two, according to Corporal Uzelac, due to their size and state of flowering had been exposed to a consistent light cycle, being 12 hours on and off.

The plants were possibly, he felt, in a three-stage cycle, being clones found in the upstairs grow room number three not generally rooting, and once rooting started the vegetative stage, and thence a third or budding stage. [ 37 ] The grow op equipment found included the use of high-intensity discharge bulbs and a ventilation system with an in-line fan and carbon filter.

This last piece of equipment is of some interest as Corporal Uzelac testified it is used to both neutralize the smell of the marihuana being grown and as well air must be circulated in a marihuana grow operation in order for the plants to grow into a healthy state. [ 38 ] There was no automatic nutrient delivery system, but rather the various nutrients which the plants being grown in soil in pots required was delivered by hand by a human being. The nutrient was held in a blue barrel located in the upstairs hallway just outside the door of bedroom number two as shown in photo 8040.

This photo also shows various hoses coming out of the top of the blue barrel down onto the hall carpet and leaving the picture in the direction of grow room number three.

Corporal Uzelac testified that the other end of this hose had a wand or nozzle typically attached to it for use in watering plants. [ 39 ] Corporal Uzelac testified that from his review of the photos and I think too the film taken by the police, the plants looked healthy and well maintained and were a healthy crop. [ 40 ] The plants in the upstairs grow room number three appeared to have been clipped or taken in the last several weeks from other more mature plants.

They were manually tended, in his opinion. [ 41 ] Again, no plants were located in grow room number two on the main floor which would normally be the residence's living room. This room was nonetheless filled with grow op equipment: bags of soil and wooden tables. The walls and ceilings were covered in reflective material. [ 42 ] If the plastic cover over the door between the kitchen and grow room number two was lifted, one can see directly into grow room number two from the kitchen.

Grow room number two also has a doorway as I have said with no door in place, opening directly into the hallway upstairs and located about four to five feet at most from an entrance into the kitchen shown in photo 8032.

Mounted on the wall to the right of this door as one looks into grow room number two is a carbon dioxide monitor. [ 43 ] In a dresser drawer in bedroom number one (as shown in photo 8070) some six butane canisters were located and Corporal Uzelac said these could be used in a process to distil highly concentrated hash oil (being itself a drug) from marihuana shake or plant leaves and stalks that were not otherwise commercially viable. [ 44 ] Corporal Uzelac testified as did other officers about the security system in place at the residence with some four exterior mounted cameras connected to an interior monitor.

He did so only based on his review of the photos and film, as I have referred to above. His review of the Report to Crown Counsel was also part of the basis for his opinion as was his review of a photo taken of the interior of the residence. The latter two items were not placed in evidence at trial. Corporal Uzelac, unlike Corporal Stanford, never set foot in the residence anywhere at any time. [ 45 ] Corporal Stanford, as part of the investigation, did a walk-through of the entire residence.

In bedroom number one on the main floor he located a television monitor on top of a dresser situated to the right of the bed and running the length of the bed or parallel to it, some 18 inches from the side of the bed. The bed itself, which appears to be a double bed, was placed right up against the northwest corner of the room and has a wooden headboard. Stanford said this monitor was "on" when he saw it. The screen was divided into four quadrants and images appeared on three of the four quadrants showing the exterior of the premises by virtue of surveillance cameras found on at least three sides of the home.

One appeared not to be working. The photos show four exterior cameras on the home, two of which faced west or towards the front of the home. [ 46 ] Corporal Stanford noted on his walk-through that "cameras can be seen from monitor". On cross-examination, he said he did not know if another officer on his investigating team had turned the monitor on.

None were cross-examined by defence counsel on this point. [ 47 ] Corporal Stanford suggested in his testimony that sometimes on a grow op search the opposite occurs, namely, officers involved will disable the surveillance cameras so that the police cannot be observed in their work potentially while the grow op is monitored off- site which was not the case with the grow op in issue in this case. Therefore, the only evidence on point is that officers sometimes turn surveillance systems off if you will, not on.

There is no evidence before me that any officer turned the system on which was how Stanford found it. [ 48 ] The surveillance system also had two other aspects to it. In the upstairs bedroom number two which Corporal Stanford entered through an open door, a computer and television and other items of furniture were located. This room had been set up to be a living room because the usual living room had been converted into grow room number two.

An audible noise could be heard in this bedroom number two and upon further investigation, the police tracked its source to a motion sensor located in an exterior wooden retaining wall near the front door of the residence which when crossed by someone, sent a beeping signal to this device in bedroom number two. [ 49 ] Lastly, in grow room number two the police found that someone had cut a little hole in the front wall in the northwest corner of the residence looking out to the front so someone could look out and see if anyone was approaching the residence. [ 50 ] Corporal Uzelac testified as to the extent of personal involvement he felt was required in the subject grow op.

The plants were well maintained. The larger shade leaves had been trimmed away. He saw no mould or fungus on the leaves. He was of the view that nutrients would have been provided to them daily or every second day and said that if they had been left uncared for beyond this, their leaves would have begun to wilt and they would not be in as good condition as shown in the photos (Exhibit N). He agreed that this well-designed production due to its size possibly had the potential to involve more than one person.

[ 51 ] He valued the potential yield of the entire crop of marihuana from the 1,690 plants at between $157,500 if sold by the pound, to $473,200 if sold by the gram. [ 52 ] I find, as did Stewart J. in R. v. Tran , that the crop in issue in this case was very much "a great treasure," having regard to its potential fair market value. [ 53 ] In cross-examination, Corporal Uzelac was referred to a portion of his report which again was not filed in evidence at trial and specifically to the top of p. 4 therein where he apparently was commenting on bedroom number two in the residence.

There, he states: A security system was also located in this room that consisted of a closed-circuit monitor to several cameras located on the exterior of the residence and an audible chime connected to a motion sensor on the exterior of the residence. [ 54 ] He said he concluded this based on his review of the above materials. [ 55 ] I find that he is mistaken as to his reference to the monitor being in bedroom number two.

I find that it was in fact in bedroom number one, the only useable bedroom apparently in use in the residence. [ 56 ] I prefer Corporal Stanford's evidence on the particulars of the security system to that of Corporal Uzelac.

Corporal Stanford was inside the residence as I have said conducting a walk-through, whereas Corporal Uzelac was not, and based his observations and above opinion in part on facts never proven in evidence at the trial, especially the film, which was not offered in evidence and shown to the Court. [ 57 ] During the course of their investigation and search of the residence, the police located certain items that can conveniently be grouped together. In the carport, a red motorcycle was found parked. It had no licence plate.

No evidence was given at the trial as to the identity of the registered owner, nor if it would start and run. There is no evidence a key was located for it anywhere during the search, nor is there evidence that without a plate, the registered owner could be located by the police. [ 58 ] In bedroom number one on the main or upper floor and the only bedroom in the residence set up and equipped as one, the police located the following items: (

a) a scrap of paper with the name "Dan MacKenzie" on it as well as the names "Matt McHattie" and "Allan Lee". This was found on the bedside table; (

b) a Telus statement in the amount of $21.61 dated March 11th, 2009, also in the name of "Dan MacKenzie". It was unopened, but opened at trial; (

c) a B.C. Hydro account dated April 6th, 2009 in the name of "Daniel W. MacKenzie", found on the dresser; (

d) a piece of paper with the name "Sean Wells" was also located on top of the dresser. [ 59 ] One officer located a Rogers account in the residence, also unopened, but opened at trial in the name of "Danial MacKenzie" dated March 24th, 2009 in the amount of $149.50 and showing the prior month's account (which was included in the overall figure) of $73.05 was unpaid. This was located on the kitchen counter. [ 60 ] There was scant evidence offered at the trial as to who any of these people were or are. The same can be said of David Horton. None testified before me.

None were found in the residence when the search warrant was executed. [ 61 ] Constable White, as part of his continuing investigation, made enquiries about Dan MacKenzie. He had his date of birth and apparently a telephone number for him. He called or tried to, several times, and left messages with no result. In the fall of 2010 before trial, he again tried unsuccessfully to reach this person by telephone. He attended a residence on Robson Street in Vancouver, but Mr. MacKenzie was not present.

He could not find him. [ 62 ] In cross-examination, Constable White admitted that he was aware that the police had a few files with Dan MacKenzie's name on them suggesting that MacKenzie had had direct contact with the police with respect to other investigations.

No particulars of same were provided and certainly no proof that the files in question were relating to the Dan MacKenzie whose name appeared on the above documents. [ 63 ] As far as Sean Wells was concerned, Constable White said he did not look into his background at any time after the search warrant was executed but testified in cross-examination he was aware that Sean Wells had a record of drug offences. [ 64 ] White also testified that he had also learned pursuant to a land title search that the residence was owned by people with Asian names (which names were not given in evidence) who lived elsewhere in the Lower Mainland.

No effort was made to contact them before the search warrant was executed.

Later on June 3d, 2009, White did contact them and having done so, eliminated them as suspects in the case. [ 65 ] White testified that the police had also learned, I think before the search warrant was executed and from an anonymous tip, that there had been a lot of traffic coming and going at the residence suggestive of a possible grow op. [ 66 ] Lastly, he said the police were aware that notwithstanding the posting of a "no entry" or similar sign at the residence at the time of the search, there had been some unlawful entries to the residence, approximately one week after the search warrant was executed, and people whose names he could not recall had been arrested inside it. [ 67 ] The police seized certain items and submitted the same for fingerprint analysis and two of some value were located.

None were found belonging to the accused, Mr. Ferris.

[ 68 ] I turn now to deal with three matters: 1. the arrest of the accused and the events surrounding the same; and 2. the voluntariness of the accused's statements to the police; and 3. the search of bedroom number one and location of the two loaded guns therein. [ 69 ] Constable White and about three other officers attended the rear door of the residence at about 1:00 p.m. A person who must have been the accused was observed looking out a window. At some point, the police knocked on this rear door and announced they had a search warrant. The accused shortly opened the door. He was naked.

He came out and was put into a prone position onto his stomach on the wooden deck and handcuffed. Several of the police officers had their guns drawn at this point. There is no evidence there was a struggle of any kind or that the accused was uncooperative with the police or injured in any way when detained or arrested by them. [ 70 ] Constable Mills handcuffed the accused's hands behind his back and told him he was being detained for theft of electricity at 1:05 p.m. Early on, the accused was covered with something. Constable Mills thought Constable Lam had brought a towel to put over him.

Constable Lam said that he had not. Constable White felt possibly a sheet had been placed over him by another officer. [ 71 ] The house was cleared by 1:06 p.m., meaning the police had by then ascertained there was no one else inside it. Constable White said he entered the residence into the kitchen area just after the accused was handcuffed. The accused was taken inside. Constable White recalled initially grabbing some clothing just inside the back door area from what he described as the laundry area or room, namely, a white t-shirt and some jeans. The residence had no laundry room per se .

The laundry equipment or machines were later found stored in a shed in the backyard. Constable White I think was referred to the kitchen nook area described above. [ 72 ] On cross-examination, White said he could not recall if the accused put these jeans and t-shirt on initially or if either item fit the accused.

Later in his cross-examination he said he had put these items on, at least the white t-shirt, but said Ferris wanted a second or other t-shirt. [ 73 ] In direct examination, White testified that the accused asked as well for a different pair of jeans located in the closet of what I find to be bedroom number one in Exhibit B. Some runners were got for the accused later.

White said in direct evidence that the accused had said to him he wanted the jeans hanging in the closet in the bedroom on a hanger and also asked for another t-shirt because he said in cross-examination the accused did not like the first white t-shirt. [ 74 ] On cross-examination, Constable White agreed his notes made at the residence state: "Male asked if he could have a pair of jeans hanging in upper bedroom closet". [ 75 ] White testified that he made two trips to bedroom number one to get the jeans and later a black t-shirt, both of which items of clothing were put on the accused.

At some point, he recalled getting a different pair of running shoes for the accused; he could not recall from where. [ 76 ] On cross-examination, White said he believed the black t-shirt he ultimately got for the accused was a Ned Harley brand or make. Importantly, in cross-examination defence counsel suggested to Constable White that the articles of clothing the accused was wearing (I understood following his arrest and upon departing the residence April 8th, 2009) came out of a bag in the kitchen and that the accused had told White where the bag was.

Constable White denied that this was so. [ 77 ] White said he and Constable Sharma helped the accused get dressed. Constable Mills testified that he had removed the handcuffs from the accused so that he could get dressed. [ 78 ] Constable White said he gave the accused his s. 10(

a) and (

b) Charter rights twice at the residence, the first time at about 1305 hours; the second time somewhat later. Constable Mills testified that he was present when Constable White did this on one occasion. [ 79 ] Constable White testified that on his arrest and thereafter, the accused seemed to understand the police and in essence, what was being said to him. He said he made no promises and gave no inducements to the accused and I understood he meant in the sense to get him to talk to them about the matters now before the Court.

This evidence was not challenged in cross-examination. [ 80 ] All members of the search team, save Constable Boechler, were called to testify initially on the voir dire . None were cross- examined on issues relating to the legal voluntariness, if I may put it that way, of what the accused said to Constable White about clothing set out above. [ 81 ] I come to the second point, the voluntariness of these few remarks made by the accused to Constable White at the residence. [ 82 ] This issue was not dealt with prior to the conclusion of the trial and my receipt of agreed upon written submissions by both sides.

All the Crown evidence was given in a voir dire in the first instance at trial, however, that was not initially declared to be a blended voir dire as often occurs to deal with both Charter issues and the issue of voluntariness. There are various reasons for this. [ 83 ] In the first instance, defence counsel made it clear he had certain Charter issues he wished to have decided, all having to do with whether or not it would be an abuse of process to have the trial against his client proceed.

Without knowing really what the evidence would be with respect to counts 1 and 2 before me, I declared a voir dire at the outset of the trial to deal with this single issue, and in reasons which followed given on December 21st, 2010 found against the accused on the Charter issues. [ 84 ] Both counsel then on December 21st, 2010 agreed and without then asking me to declare a second voir dire to deal with the issue of voluntariness of the accused's statements (and I did not myself raise this issue or declare such a voir dire ) that all evidence given on the voir dire could form evidence at the trial.

Defence indicated that no evidence would be called and a date was then set for delivery of written submissions by each side and for my delivery of these reasons.

[85] On January 6th, 2011, I received a letter from Ms. Choi, Crown counsel, copied to Mr. Bagnall, stating in part that she hadcontacted Mr. Bagnall on the issue of voluntariness of the accused's statements to Constable White and advised that he was notchallenging the voluntariness of same, only the accuracy of the statements. Her written argument, received later, sets out a letter datedJanuary 7th, 2011 from Mr.

Bagnall to her as follows: As per our exchange of telephone messages yesterday, please be advised that the accused does not challenge the voluntariness ofstatements of the accused introduced into evidence during the voir dire and the accused agrees that the statements may form part of theevidence at trial. [86] No issue has been made or taken that the above statements made by the accused to Constable White were other than legallyvoluntary as this concept is understood in the well-known Supreme Court of Canada case of R. v.

Oickle, 2000 SCC 38 , [2000]2 S.C.R. 3. [87] I find that the Crown has established with proof beyond a reasonable doubt that the statements made by the accused to ConstableWhite on his detention and/or arrest were voluntary within the legal rules set out in this above decision. [88] I turn to the third point. [89] Bedroom number two was searched by Constables Mill and Boechler. Mills searched the eastern half commencing at about 2:40p.m.; and Boechler searched the western half. Mills recalled when he entered this bedroom it had an open standard interior door.

Heagreed Corporal Stanford had been in the room beforehand. He estimated it to be about 12 foot square. [90] At 2:45 p.m., a shotgun was located between the mattress and headboard of the bed on the north wall of the room and it wasunder the mattress. The shotgun was lying parallel to the wall. It was loaded with four buckshot shells and one slug. However, nothingwas in the chamber. The safety was on. Constable Mills unloaded it before it was replaced and then Constable Lam photographed it inabout the same place where he had found it.

Constable Mills said he only discovered this shotgun when he lifted the mattress up off thefloor. It was therefore concealed. [91] In cross-examination, Constable Mills agreed the shotgun was not in plain view, and said that had he had not moved the mattresshe would not have known it was there.

Assuming the mattress was unmoved, anyone walking into this room would not see the shotgunsecreted where it was, according to this witness. [92] The handgun was also found in this bedroom under at least one or two t-shirts in a pile of clothing located near the head of thebed and west bedroom wall and the front of the dresser, some 18 inches away. Constable Mills agreed a black t-shirt had been movedbefore Constable Lam photographed this gun. The t-shirt was over top the handgun. Constable Mills agreed on cross-examination thatthis gun could not be seen or photographed until the clothing was moved.

Constable Mills also agreed you would not have to move thelaundry in the area where the handgun was found to get at it if you knew it was there. [93] Constable Lam testified as to when he took various photos in bedroom number one in the area where the gun was located. Eachphoto in Exhibit N has a date and time stamp on it. Constable Lam felt the time stamps were accurate and showed when the photos weretaken. Photo 8042, taken at 1:50 p.m., before bedroom number one was searched, shows a clear plastic bag with what looks like sheetsor bedding folded up inside in the immediate area where the handgun was found.

Photo 8061, taken later at 2:57 p.m., does not show thisrather large bag, rather shows only two items of what looks like folded bedding. Constable Lam agreed this bag had been moved offwhere the handgun was ultimately found. [94] I conclude this handgun when located by the police and especially Constable Mills was not in plain view and was likewiseconcealed. [95] I should add that Constable Mills also located some body armour in a closed bag or black case on the floor area near the dresseron the east wall of the bedroom. He was unsure if the case was open or not.

Corporal Uzelac testified it was not uncommon to find abullet-proof vest at a grow op. [96] Constable Mills agreed bedroom number one was fairly messy with predominantly men's clothing on the floor. He could not sayit was all men's clothing, but had no recollection of seeing any women's clothing in this room, nor could he agree or say there were bothmale and female cosmetics on the dresser in this bedroom. He felt the clothing in this room was Mr. Ferris's due to his height andweight.

The handgun was also loaded. [97] I find that both the shotgun and the handgun were readily accessible to anyone lying normally on the bed with their head towardsthe north wall of the bedroom where the headboard is located. Each was within easy reach of such a person. The photos of this bedshow, by reason of the bed clothing, this was the manner in which the bed was being used. [98] Corporal Uzelac testified it was common place to see weapons in grow operations. This was so because the product was acommodity with a great deal of value. Criminals wish to obtain it and will use violence to do so.

Weapons and dogs are often used byproducers to protect themselves and their crop from such persons who might intrude. THE LAW [99] I have been provided with some 14 cases by counsel. The same are referred to in the Appendix to these reasons. I have reviewedall of them. I do not intend to review them in any detail in these reasons. I am aware that the evidence in this case as often occurs withcharges under the Act, is for the most

part circumstantial as it relates to these various charges set out on the Information. [100] Our Court of Appeal in R. v. Ngo at paras. 54 to 55 of its reasons said this as to the test to be applied by a trial judge consideringsuch evidence:

[54] In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of factmust not examine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, takentogether, establishes the guilt of the accused and is inconsistent with any other rational conclusion: R. v. G.L.J., [1997] B.C.J. No. 2994at para. 29 (C.A.); R. v.

Aylward (1993), (BC CA), 36 B.C.A.C. 14, at paras. 5-7. [55] As to competing inferences from circumstantial evidence that might be open to a trial judge, the observation of McEachernC.J.B.C. in R. v. To (1992), (BC CA), 16 B.C.A.C. 223 at para. 41, is apposite: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusioncan be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially forinferences consistent with guilt, but it does not demand certainty. ... [101] In R. v.

To, supra, the accused was observed by the police leaving an apartment in which he was staying with two plasticshopping bags which he placed in a car. A large amount of heroin -- 4.4 pounds, 96 percent pure, worth 11.95 million dollars streetvalue -- was found in one of the bags. [102] The accused was charged with possession of drugs for the purpose of trafficking and testified in his own defence at trial.

Hisstory was that he took the bag essentially at the request of a man, I think not known to him, and put it in the car pursuant to his directionsand that he did not know it contained heroin because he had not looked inside. [103] The real question the Court needed to determine, according to Chief Justice McEachern, was whether it might legitimately beinferred that the accused had knowledge that the plastic bag he had in his physical possession contained a large quantity of heroin. Thetrial judge disbelieved the accused and inferred that he knew the bag contained heroin.

McEachern C.J. dealt with when a court mightinfer knowledge from mere physical possession at p. 7 of his reasons as follows: Thus it seems to me, with respect, that it is legitimate to infer knowledge from mere physical possession in proper circumstances whichinference will be displaced if an explanation is offered which raises a reasonable doubt or if, as in Hess, other inferences consistent withinnocence may be drawn from all the proven circumstances. It is this rational process which distinguishes inference from speculation orconjecture.

At the end of the case, of course, the Crown must prove the guilt of the accused beyond a reasonable doubt, but once thatwas done, on the circumstances of this case, the burden of adducing an explanation that raises a reasonable doubt, or of extractingreasonable doubt from the evidence, rested upon the accused.

The total rejection of the evidence of the accused is tantamount to the accused having given no evidence or offered no explanation, and itthen became necessary to consider whether, on all of the evidence, an inference of knowledge may be drawn from the proven facts, orwhether, in all the circumstances, a fair consideration of the evidence either leaves the scales in even balance, or tilts one way or theother. The answers to those questions, of course, indicate whether the Crown's case has been proven to the requisite degree, that is,beyond a reasonable doubt.

I have reached the conclusion that it would be legitimate, on the broad facts of this case, to infer beyond a reasonable doubt that theaccused knew the plastic bag contained a prohibited drug. In fact, I think that would be the only reasonable inference which could bedrawn. I believe that not just because the accused was found in physical control of the drugs, but also because of the highly suspiciouscircumstances and the immense quantity and value of the drugs.

These facts make it so unlikely that such a large quantity of drugswould be entrusted to anyone who did not know what was in the bags that such a possibility may safely be rejected. In addition, hisantecedent, highly suspicious conduct, most of which was proven affirmatively before he gave his disbelieved evidence, make itimpossible to draw any inferences which would displace the legitimate inference which may be drawn from physical possession that heknew what he was possessing. (Emphasis added) [104] There then followed in Chief Justice McEachern's reasons in R. v.

To the often quoted reference set out by our Court of Appealin R. v. Ngo, supra, at para. 55 above. [105] The substantial value of the drugs was therefore very relevant to an inference of the accused's knowledge of drugs in R. v. To,supra. [106] R. v. To, supra, also makes it clear that in drawing inferences from circumstantial evidence, the same must be reasonable orrational and not speculative or amounting to conjecture. [107] Recently, the Alberta Court of Appeal has dealt with this same point in R. v. Ta, 2010 ABCA 145 also a case involving a chargeof possession of drugs for the purposes of trafficking.

The Court said this on point at para. 15 of the reasons: [15] The appellant raises a number of alternative inferences that could have been drawn from the undisputed evidence. We disagree. First, the nature of the inferences at issue are either purely factual or mixed fact and law. In either case they are deserving of a highdegree of deference. Second, the alternative inferences he suggests are not founded on the evidence but are rather speculation. In otherwords while possible in the abstract, they are not raised on the record.

This type of speculation has properly been rejected. (See R. v.Jenner, 2005 MBCA 44; R. v. Pham (2005), (ON CA), 77 O.R. (3d) 401). [108] In dealing with circumstantial evidence and drawing inferences therefrom, the trial judge must look at the cumulative effect ofall this evidence; not each individual piece of evidence is to be subjected to the criminal standard of reasonable doubt (see R. v. Morin, (SCC), [1988] 2 S.C.R. 345 (S.C.C.) referred to in R. v. He, [2008] B.C.J.

No. 2002 at para. 42). [109] The relevant principles of the law of possession are referred to in many of the cases cited by counsel and certainly in R. v. To,supra, which however, unlike the case at bar, involved personal possession. In the case before me I think the appropriate term to use isconstructive possession as no drugs were ever found on the person of Mr. Ferris.

[110] Mr. Justice Stewart in R. v. Tran, supra, succinctly summarizes the law of possession that would apply in this case at para. 12 ofhis reasons as follows: [12] The law I must apply is Horn [phonetic] Book Law as to when a person has something in possession. Section 4(3)(

a) of theCode is the starting point. I will take it as read. Authorities that are controlling establish that essential to a finding of possession is proofbeyond a reasonable doubt by the Crown of knowledge, here the marihuana plants, and some measure of control or right to control, hereof the marihuana plants. [111] To similar effect, Bauman J.A. (as he then was) in R. v.

He, supra, said this in para. 19: [19] In relation to the possession for the purpose of trafficking offence, the question the trial judge was required to determine waswhether the appellant had "possession" of the marihuana within the meaning of s. 4(3) of the Code, incorporated in the CDSA by virtueof s. 2(1) of that statute. It is undisputed that possession must include both knowledge and some act or measure of control: R. v.Terrence (1983), (SCC), 4 C.C.C. (3d) 193 (SCC).

The question the trial judge had to determine was whether thecircumstantial evidence established to the criminal standard such knowledge and control on the part of the appellant. [112] As to the charge of production, Bauman J.A. said this in para. 20: [20] With respect to the production offence, the question the trial judge was required to determine was whether the appellant wasproducing the marihuana in the sense of actively participating in the growing of the plants: R. v. Powell (1983), (BCCA), 9 C.C.C. (3d) 442 (BCCA); R. v. Vu, 2002 BCCA 659.

In Powell, at 444, Esson J.A. held that possession is not an includedoffence in cultivation, observing that the gravamen of the offence of cultivating is active participation in the growing of prohibitedplants. [113] Rowles J.A. in R. v. Vu, supra, at para. 27 commenting on R. v.

Powell, supra, and the difference between the two drug chargesbefore this Court said this in part: [27] … It is possible to possess marihuana for the purpose of trafficking without producing or cultivating it, since a conviction forpossession for the purpose of trafficking requires proof of knowledge and an element of control but does not require any evidence ofactive participation in the growth of the plants. Contribution to the growth of plants is irrelevant to a finding of possession.

For example,if the appellant was on the property to distribute the marihuana in the barn, it could hardly be said that he necessarily participated in theproduction of the plants. [114] In Vu, supra, the marihuana plants comprising the grow op were found in a barn on the subject property. [115] I intend to deal with the firearms offences separately although most if not all of the above legal principles apply to these chargesas well because the evidence concerning same is largely circumstantial and the weapons were not found in the actual personal possessionof the accused, that is to say, on his person.

POSITION OF THE PARTIES [116] I will deal with the parties' position in argument on the drug offences and firearms offences separately. I will first deal withcounts 1 and 2: The Crown [117] A substantial portion of Crown's argument dealt with various legal authorities said to be supportive of a conviction on the drugoffences. Having regard to the facts in this case, many of which are not disputed by the accused, Ms. Choi argues that it is inconceivablefor Mr. Ferris to be in the residence and not know about both the marihuana grow operation and the firearms.

As to control, she said thisin paras. 61-2 of her written submission: 61. With respect to the element of control, there is overwhelming evidence in support of it. The accused was the only person in theresidence. He opened the rear door when the police knocked and announced. He was naked. The search warrant was executed in theearly afternoon. As articulated in Darbyson the accused controlled access to the residence by opening the rear door. Moreover, theaccused was the sole person present in the residence containing a highly valuable marihuana crop.

Corporal Uzelac testified the potentialvalue of the crop at maturity if sold by a pound ranges from $157,500 to $315,000 (see Darbyson, supra, para. 21). 62. In addition, the accused exercised control of bedroom number one. He requested a pair of jeans located in the closet in bedroomnumber one which was the only bedroom in the residence containing a bed. A handgun and a shotgun were located in this samebedroom. There was predominantly male clothing in the bedroom. The TV monitor on the dresser in the bedroom depicted the threeexterior surveillance cameras.

The evidence clearly demonstrates a connection of the accused to bedroom number one, a room occupiedby the accused. [118] I believe Ms. Choi has selected one figure, namely, $315,000 given in evidence by Corporal Uzelac but not his highest estimateof value based on the sale of the potential crop by the gram. [119] Ms. Choi concluded that based on all the evidence, in essence, the only rational inference I should draw was that the accusedwas an active participant in the grow operation and that he unlawfully possessed both guns. Importantly, and I think too, somewhat inline with McEachern C.J.'s views in R. v.

To, supra, Ms. Choi said this in para. 72 of her written submission: 72. In considering the cumulative effects of the evidence in totality, it is inconceivable that any person would be entrusted with amarihuana grow operation of this size, value, and sophistication in the residence without the person having any knowledge and control ofit. The evidence led to only one reasonable inference which is the accused was in the residence to play a role in the marihuana growoperation and that the accused unlawfully possessed both the shotgun and handgun.

[ 120 ] Alternatively, Ms. Choi argued that pursuant to s. 21 of the Criminal Code even if I found Mr. Ferris was not a principal or owner of the grow op, I could on all the evidence find he at least aided or abetted in it by providing assistance to the producer as in R. v. Ngo , supra at para. 85. The Defence [ 121 ] Mr. Bagnall's argument points out that there are essentially gaps in the evidence or, as he puts it, no evidence on certain things, for example, no evidence was led by the Crown to link Mr. Ferris to the residence.

He concludes that a reasonable inference from all the circumstances revealed by the evidence at trial is that Mr. Ferris was a visitor at the residence on April 8th, 2009 and otherwise had no connection with the property. An inference of guilt is not the only inference that could be drawn from the evidence. [ 122 ] He concludes in

part in para. 29(

r) of his written submission: 29. (

r) Unlike those cases in which there is otherwise convincing evidence of guilt, the accused Ferris is not required in this case to provide an innocent explanation for his presence in the building. [ 123 ] I will return to this statement later. DISCUSSION [ 124 ] I intend to deal with some of the points made by Mr. Bagnall relating to the state of the evidence. [ 125 ] He makes reference to the pickup truck found at the residence on April 7th, 2009 in the driveway found to be registered to a person named David Horton who was known to the police and had a record for drug related offences.

This vehicle was seen parked front in and later backed in. [ 126 ] I observe that Crown has not asserted that Mr. Ferris was the only person who might have been involved in this grow operation. Certainly Mr. Horton was not called to testify even assuming he was involved in some way with this grow operation and I do not so assume. I should not speculate what this truck-related evidence means insofar as it might point to Mr. Horton's involvement. My reaction to it when viewed with all the evidence in this case is as per my brother Judge de Walle P.C.J. in R. v.

Zheng , 2007 BCPC 406 at p. 4 : [13] … Whether or not others were involved is a question that I am not going to speculate on, and it is not necessary for me to determine. [ 127 ] I will not speculate as to who drove this truck to the residence, why they did so, whether they ever entered the residence and if so, why, and if Mr. Ferris was there at the time, or whether this was the first time they had ever been to the residence. In my view, by making really anything of this evidence when I am considering all the evidence in this case would require speculation of the sort discouraged by Bauman J.A. in R. v.

He , supra , at para. 56. It is nonetheless a piece of circumstantial evidence to be considered with all the evidence in the case as R. v. Morin , supra , requires. [ 128 ] A search of the residence found nothing to link Mr. Ferris to the residence save the shirt and pants. Some of the cases disclose fact situations where the accused is a permanent residence of the place where drugs are found, for example, an owner or tenant who signed a lease or disclosed the keys, drivers' licences, wallets and/or photographs were located (showing the accused) or in the case of keys to the grow op even on his person.

I think these are some of the types of links Mr. Bagnall is referring to. Others might in an appropriate case include mail or invoices in the name of the accused. Sometimes, as in the case at bar, there is like evidence in the names of other persons, here, Daniel MacKenzie. [ 129 ] Mr. Justice Hill in the well-known case of R. v. Emes , [1999] O.J. No. 1311 has dealt with the evidentiary value of such evidence. [ 130 ] In Emes , supra , the accused was charged with the same two charges as is Mr.

Ferris in counts 1 and 2, and it was alleged the accused resided in one basement suite at one location and conducted a grow operation at a second location whereat he was a tenant, both in the City of Toronto.

The Crown relied heavily on documents seized during a search of both locations and on legitimate inferences that could be drawn from them because they were in the accused's name and/or described certain subjects or transactions. [ 131 ] Crown in Emes, supra , did not rely on what Hill J. called "… proof arising from truth-of-contents inferences raised by 'business records' or 'document found in possession' doctrines" (see para. 26). Documents located in R. v.

Emes in both locations, all in the accused's name, included utilities accounts, a notice to tenants re building parking, income tax assessments, a car rental agreement, cheques, a photo of the accused with the grow op equipment, a tenancy renewal agreement, various receipts, and two insurance policy renewal documents. There were no documents located in any other person's name. [ 132 ] Defence argued that these various documents, and there were many, had no value as circumstantial evidence. Mr.

Justice Hill disagreed, finding some of the above to be more personal documents, for example, the tax returns and photographs. [ 133 ] I note in the case at bar, the MacKenzie documents do not fall into this class of documents, nor are there any documents in Mr. Ferris's name. [ 134 ] Hill J. held in para. 30 of his reasons in Emes , supra , that the logical inference to draw from the above documents was that the accused was substantially associated with the basement apartment as a person who was an owner, tenant, or person with access and control.

As to the grow op site in Emes , witness testified that he was a resident therein. Hill J. found the seized documents thereat suggested the accused's association with this site and were relevant to the material issue whether the accused had a sufficient connection to the site that the Court could be satisfied beyond a reasonable doubt that the accused was in possession of the marihuana found therein. Hill J. said this in paras. 36 to 38 of his reasons:

[36] The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates tocircumstantial inference-drawing apart from the truth of the contents of the seized documents: see Regina v. Lydon (1987), 85 Cr. App.R. 221 (C.A.) at 223-225 per Woolf L.J.; Regina v.

Rice, [1963] 1 Q.B. 857 (C.C.A.) at 869-973 per Winn J.; Ewart, D., DocumentaryEvidence in Canada (1984), at pp. 20-21; Sopinka ,J., Lederman, S., Bryant, A., The Law of Evidence in Canada (1992), at p.20. [37] Personal papers are, as a general rule, maintained in a location to which a person has access and control. When documents suchas income tax forms, invoices, cancelled cheques, leases, insurance papers and the like are located in a residential premise it is surely afair inference that the person identified in the documents is an occupant with a significant measure of control.

This is a matter of logicand common sense. While the existence of the papers at the location in question could be as a result of the documents being stolen, orsimply stored there, or abandoned, such explanations do not, in my view, accord with the factual probabilities of the circumstances here. [38] Likewise, the finding of documents relating to the subject matter of marihuana cultivation, found in close proximity to thosepersonal papers identifying Mr. Emes, suggests that the documents are his as well.

The inference to be drawn from a person's possessionof documents characteristic of one operating a hydroponics venture is not terribly dissimilar to the inference which might be drawn fromfinding an individual in possession of physical items such as ballast, fans, grocubes, water trays, fans, heaters, various chemicals, PHcompound, transformers, high wattage bulbs and reservoirs. [135] Mr. Emes was convicted based on all the circumstantial evidence including the mountain of documents including personal onesfound at the locations.

He did not testify, a point which was noted by Hill J. at para. 40 who said as follows: [40] Mr. Emes did not testify and no defence evidence was called. In this regard, the words of Sopinka J. in The Queen v. Noble(1997), (SCC), 114 C.C.C. (3d) 385 (S.C.C.) at 421 are to be remembered: ... while it is permissible to conclude from the failure to testify that there is no unspoken, innocent explanation about which the trier offact must speculate, it is not permissible to use silence to strengthen a case that otherwise falls short of proving guilt beyond a reasonabledoubt.

If the totality of the evidence leads to guilt beyond a reasonable doubt, the accused's silence simply fails "to provide any basis toconclude otherwise". [136] Emes, supra, can be factually distinguished from the case at bar as it does not deal with documents in a name other than theaccused. As well, in para. 37, Hill J. speaks of a general rule that personal papers are maintained in a location to which a person hasaccess and control.

In the case at bar, I find that none of the papers located on the police search are what Hill J. called personal papers. [137] I also note in Emes, supra, while not obliged to testify, Mr. Emes could have testified about the documents in question. This is adifferent kettle of fish then expecting an accused to testify about documents in another man's name or procure that man to do so himself. [138] In the case at bar, the documentary evidence is as outlined above. As well, there is said to be an absence of documentaryevidence linking Mr.

Ferris to the residence. [139] In the context of this case, I am of the view that such evidence or lack of same really points nowhere. I have found this was ahighly sophisticated grow operation as outlined and detailed by Corporal Uzelac. While it is sometimes said that members of thecriminal element are not the sharpest knives in the drawer, in this case, such adage would in my opinion be wrongly applied.

Everythingabout this grow operation points to it being set up by a real professional or group of same, someone or some group of persons who knewwhat they were doing. [140] Am I surprised that no wallet or licence or family photo was found relating to Mr. Ferris? Not at all. Rather, I would have beensurprised if such evidence was located in the sophisticated grow operation that was being conducted in the residence in question. Am Isurprised that the Hydro and Rogers bills are in someone else's name? Not at all.

If I accept that whoever set up this grow op was asophisticated and knowledgeable person and knew what he or the group was doing, and I do, why ever would they arrange to have theseaccounts in Mr. Ferris's name or the name of anyone who was ever to be inside the residence? [141] Mr. Bagnall states that Constable White initially referred to obtaining clothing for Ferris from a laundry room and noted thatother witnesses said there was no such room in the house. [142] In my view, nothing turns on this. The laundry machines were in storage in the back shed.

The area to the left of the rear doorfacing west may well have appeared to Constable White to be a laundry room like area. He did not spend a lot of time inside theresidence and did not formally search this area. Photo 8038 certainly shows a space which in my view could potentially well once havebeen used for this purpose having regard to its apparent size. [143] Mr. Bagnall says there were numerous documents found within the residence in Mr. MacKenzie's name. By my count therewere four only (referred to above). Mr. Bagnall states in para. 11 that Daniel or Danial MacKenzie rented the residence.

I do notunderstand this fact was established in the evidence before me. [144] If I am mistaken, I would tend to class or group such a fact with situations occurring in the case law submitted where at times aresidence may be owned by a person other than the accused before the court, for example, R. v. Tran, supra, R. v. He, supra, and R. v.Ngo, supra.

I do not find it at all unusual that a sophisticated grow operation might be conducted in premises not owned or leased byparticipants or for that matter that a grow op might be conducted therein by persons other than the registered owners or tenants. [145] As with Mr. Horton, there are no facts and really very little evidence to support any reasonable non-speculative inference orfinding relating to Mr. MacKenzie's role in this matter, if any, even when considered with all the evidence in the case. Of some interest,two of the bills were found unopened and only opened at trial.

There is no explanation as to how or why this might have occurred orhow any of these documents got to where they were found in the residence by the police or that these accounts were ever paid by aDaniel MacKenzie at any time or that he was even the applicant for the account in the first instance. [146] In my view, the same result must follow with respect to Sean Wells as I have set out above for both Mr. Horton and Mr.

MacKenzie. It would be sheer speculation for anyone in my view to attempt to infer anything from the little evidence relating to Sean Wells beyond the facts themselves even if this evidence is considered as I have done in light of all the other evidence at trial in reaching a decision in this case. As was the case with Mr. MacKenzie, Mr. Wells did not testify before me. [ 147 ] My task, which I will shortly come to is to determine whether the Crown has established the guilt of the accused beyond a reasonable doubt on all the evidence which I accept as true and applying the above tests set out in R. v.

Ngo , supra , at paras. 54-5. [ 148 ] Mr. Bagnall asserts the clothing in bedroom number one was not all male. This is incorrect. The evidence was that the police officer who searched this room could not say whether it was all male or not, a slightly different point. I do not accept either that the evidence in this case relating to scent bottles and other articles on the dresser in bedroom number one does not suggest a sole occupant or rather more than one occupant and of both genders.

I have summarized this evidence above. [ 149 ] I have attempted to reconcile the evidence of Corporals Stanford and Uzelac above as to the presence of video monitors in bedroom numbers one and two. Even if I were to accept as accurate Constable Uzelac's evidence that there was a TV monitor in bedroom number two (used as a living room) and I do not, it would not in my view materially change the evidence in this case. [ 150 ] Mr. Bagnall submits Corporal Uzelac said the type of grow op in the residence would require attention in the application of nutrients every two days.

I have set out his evidence on point above and indeed there may be some minor conflict in it where on one hand he said the plants he felt required care every day or two days, but admitted in cross-examination the grow op seemed to be set up so as to not require attention 24/7 meaning I think daily or every day of the week. The essence of his testimony on point is that it required regular and frequent attention and that it was getting it by reason of the state of health of the plants shown in the photos. [ 151 ] Mr. Bagnall submits there was no evidence of keys. This is true.

It is not established how the accused entered the home. However, there is no evidence that it had been broken into and of course the accused was found inside, so he either had a key and hid it and the police did not find it, or gained access some other way. Certainly the carport entry door was locked. [ 152 ] It makes no sense to suggest that the entrepreneurs of this crop worth as much as $473,000 would ever leave the rear door open or unlocked. That said, I accept that there is no evidence the rear door was locked before Mr. Ferris opened it.

It offends common sense when all the evidence in this case is considered to postulate that any exterior door of the residence was not capable of being locked. Why have a sophisticated surveillance system and leave the doors unlocked, especially when a very valuable marihuana crop is inside and is itself not locked away so that some random attendee at the residence who gains access could have access to the crop? [ 153 ] Mr. Bagnall argues that Mr. Ferris was not shown to possess anything that would have permitted him to restrict access to the building, for example, a key to any lock on the doors.

This suggests of course a key would be required to lock all doors from inside. The passage set shown in the door in photo 8029 would suggest a button in the interior doorknob would lock the door, not a key. I take judicial notice that many doors in common use in Canada lock in this fashion and do not require a key used inside to activate the lock.

Photo 8035 showing the rear door appears to have a similar passage set as I think the knob entity is properly described as shown in the door from the garage in which case it too would be capable of being locked inside without a key being required. [ 154 ] I do not agree with Mr. Bagnall's submission in para. 29(

f) that any of the documents found in the residence named persons who had a relationship to the building or residence as I refer to it. A Hydro account in, for example, Mr. MacKenzie's name at the residence address with respect tells me nothing about Mr. MacKenzie's relationship to the building and does not without more even establish a relationship. [ 155 ] I do not agree that Mr. Horton was on the evidence associated with the building (para. 29(g)). We do not know that he drove his truck there or if someone else did or who that might have been or if this other person did so, with or without Mr.

Horton's knowledge. [ 156 ] I have dealt with documents in the name of Sean Wells above. As to his arrest in the residence later in time, this is not evidence that he either knew about or participated in the grow op discovered on April 8th, 2009. [ 157 ] Mr. Bagnall submits that because the lighting system was automatic, this means that a resident caretaker was not required (para. 29(

j) of his argument). I do not think Corporal Uzelac's evidence went quite this far. In any event, it is very clear that these marihuana plants required in order to grow and prosper as they were regular manual administration of water and nutrients as well as light and that they were getting it. DISCUSSION AND CONCLUSION [ 158 ] I will deal with count 2, the charge of possession for the purposes of trafficking first. [ 159 ] Possession again must include knowledge on the part of the accused of the drug in issue and some act or measure of control over it.

I find that Crown has proven the following facts relevant to control beyond a reasonable doubt: 1. The accused was the only occupant inside the house when the police arrived thereat to search it on April 8th, 2009. Throughout these reasons I in fact have referred to the house as the residence. 2. He came to the door nude. He could and did open the door from inside. 3. The carport door was locked when the police arrived and had to be broken open with a ram or similar device. 4. There was male clothing located in bedroom number one.

One above police witness whose evidence on point I accept said he felt the clothes were of a size that would fit the accused. I give this evidence limited but some weight because no fitting occurred at the scene whereby the accused was asked to try on all items of apparel in question. 5. The accused directed Constable White to bedroom number one to get a specific t-shirt and jeans apparently on a hanger and

White did so and these items were subsequently put on by the accused, possibly with limited police help and worn by the accused when he left the residence. 6. The accused had ready and easy access to all rooms within the residence including all rooms containing the 1,690 marihuana plants as none were locked and it was a small residence. The plants were on maturity worth as much as $473,000 if the marihuana were sold by the gram. 7. There was food in the fridge and freezer as well as certain of the kitchen cabinets and importantly certain perishable items, milk and eggs, in the fridge. 8.

Bedroom number one was the only bedroom capable of being used as such and while messy appeared to be being used as such on April 8th, 2009. 9. The surveillance monitor was located in this bedroom number one and was on, showing on three quadrants of four on the screen, exterior views of the residence taken by three of four external surveillance cameras. Further, a functioning motion detector alarm system existed in bedroom number two connected to an exterior sensor close to the front door on the outside of the residence. 10. There were male toiletries in the only working bathroom on the upper level. 11.

There is no evidence anyone else was using or staying in the residence, certainly in the sense that there was no one found therein with the accused or, for example, identified as a tenant with a lease document as occurred for example in the case of R. v. Emes , supra , found inside the residence. 12. Two of the three exterior doors appeared to be capable of being locked from the inside. As well, I draw the following inferences from these facts: (

a) while no key to the premises was found on the accused or sitting in a place to which the accused had ready access, for example, the kitchen counter, he was inside and at some point he must have had a means of gaining access to the interior of the residence and the grow op therein; (

b) while I cannot detect from the photo of the front door that it was capable of being locked, I infer from the value of the crop, the fact that two of three doors are capable of being locked from the inside and the presence of all the surveillance systems that it too was capable of being locked from the interior and that the accused had a complete ability to control public access from the outside to the valuable crop inside the residence; (

c) I infer and find on all of the above facts that the accused was more than a random visitor who dropped in briefly, for example, for a shower after a run. I conclude as in R. v.

Wu , supra , at para. 42, that if not a permanent resident, he was at least an occasional or temporary resident on April 8th, 2009 of the residence. [ 160 ] It is inconceivable that the owners of this grow operation containing such a valuable crop and with the capital infrastructure found in place would so conduct themselves having all the security systems in place so as to permit a random person to merely drop in for some purpose having nothing to do with the production of marihuana within the residence. If this was to be allowed and indeed tolerated, why have any locks on any of the doors?

Why put plastic and plywood over front and rear windows? Why have surveillance or motion detecting equipment and a filter to clean marihuana odour from the interior air if just anyone at all could innocently enter the residence at any time? [ 161 ] Some of these above facts are also relevant to the accused's knowledge of the marihuana.

However, I also find that the Crown has proven these following facts that relate to the accused's knowledge of the marihuana beyond a reasonable doubt: (a) 1,690 healthy marihuana plants comprising both clones and mature plants were found in two readily accessible grow rooms on the main upper and basement floors of the residence in plain view; (

b) there is no evidence these plants were hidden inside the residence in a locked room; they could easily be seen by anyone in either floor of the residence; there were no interior locked doors; (

c) virtually every room in the residence, save perhaps the bathroom, had either marihuana plants in it, equipment or supplies related to what is proven to be a very sophisticated commercial grow operation found therein and clearly visible to anyone inside the residence; (

d) there was a smell of marihuana in the residence immediately noticeable to someone entering the kitchen -- in this case the police. This is an obvious indicator of a grow operation (see, for example, R. v. Bauer , supra , at para. 19); (

e) packaged marihuana was in plain view on the kitchen counter and two bags of shake were found in the freezer in the kitchen; (

f) the plants were all found in good shape; no automatic watering or feeding system existed and they had to be fed and watered regularly and manually and cared for every day or second day having regard to their condition. I accept Corporal Uzelac's opinion on point. [ 162 ] In my view, when all the evidence is considered as a whole in this case including the facts set out above and even the lack of evidence as mandated by R. v.

Morin , supra , I am satisfied that the Crown has proven beyond a reasonable doubt that the guilt of the accused with respect to count 2 on the Information is the only reasonable inference to be drawn and that all the evidence when considered is inconsistent with any other rational conclusion. [ 163 ] The accused's knowledge and control and hence possession of the marihuana in issue for purposes of trafficking is the only reasonable non-speculative inference to draw from the proven facts. There is no other rational or reasonable non-speculative inference to

be drawn on all the proven evidence in this case, including for example that the accused was merely a random visitor in the residence onApril 8th, 2009. [164] The accused gave no evidence and called no witnesses. As in R. v. Bauer, supra, at paras. 22 to 23 and R. v. Nguyen, supra, atpara. 36 referred to in R. v. Wu, supra, at para. 39, Mr. Ferris must be taken to having observed the grow operation. It was in plain viewand obvious. Residents in such cases would have knowledge of what is obvious (see, for example, R. v. Ta, supra, at para. 17).

Hewould have smelled it and been alive to the lighting which was on in grow room number two. [165] He did not offer any explanation for these and many other listed above inculpatory facts which as in R. v. Nguyen, supra, in myview enveloped him in the ongoing grow operation within the residence. It is significant he did not testify having regard to the extent ofthe circumstantial evidence and I find the dictum of Irving J.A. in R. v.

Jenkins (1908), (BC SC), 14 C.C.C. 221 is aswell directly applicable on the facts of this case, namely: 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 network of inculpatory facts, that man is bound to make some explanation or stand condemned. [166] I have also considered s. 21 of the Criminal Code with respect to this charge in count 2. In my opinion, Crown has also provedbeyond a reasonable doubt on the above analysis that Mr. Ferris both aided and abetted within s. 21(1)(

b) and (

c) of the Criminal Codethose persons who owned the grow operation in question. [167] I turn now to the charge under count 1: production of a controlled substance. Does the evidence support a conviction under thiscount? [168] I have above referred to the cases of R. v. Powell, supra, and R. v. Vu, supra, on point. Under the Controlled Drugs andSubstances Act, the verb "produced" as used in s. 7(1) is defined as follows: “produce” means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or processincluding … (

b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwiseobtained …. [169] In R. v.

Busby (1972) (YK CA), 7 C.C.C. (2d) 234 (Yukon Territories Court of Appeal which of course isreally the British Columbia Court of Appeal sitting in this jurisdiction) the Court accepted the Oxford English Dictionary definition ofcultivation in interpreting the verb "cultivate" in s. 6(1) of the then Narcotic Control Act meaning "to bestow labour and attention uponland in order to the raising of crops; to till; to improve and render fertile by husbandry". [170] In Busby, supra, the above dictum of R. v. Jenkins, supra, was found directly applicable by the Court of Appeal.

The Courtupheld Busby's conviction essentially as a found-in in his residence with an active grow op ongoing in the basement. [171] In R. v. Powell (1983), (BC CA), 9 C.C.C. (3d) 442, a further judgment of our British Columbia Court ofAppeal referred to above, our Court of Appeal dealing with the same predecessor legislation held following the Ontario Court of Appealdecision in R. v. Gauvreau (1982), (ON CA), 65 C.C.C. (2d) 316 that the verb "cultivate" involved activeparticipation in th

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