Regina v. Gough and Jesson Date:, 2014 BCPC 204

Citation: Regina v. Gough and Jesson Date: 20140822 2014 BCPC 0204 File No: 84988-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDY MICHAEL GOUGH and MATTHEW ALBERT CHARLES JESSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: A. Ip Counsel for the Accused Mr. Gough : J. Thorhaug Counsel for the Accused Mr. Jesson : J. Conroy Place of Hearing: Port Coquitlam , B.C.

Date of Hearing: August 22, 2014 Date of Judgment: August 22, 2014 [ 1 ] THE COURT : Mr. Gough and Mr. Jesson are jointly charged on an Information sworn December 6th, 2010 with the two following offences: 1. Unlawful production of a controlled substance, marihuana, on or about September 17th, 2010 at or near Maple Ridge, B.C., contrary to s. 7(1) of the Controlled Drugs and Substances Act (hereinafter referred to as the " CDSA " ). 2. Unlawful possession of marihuana as in 1 above for purposes of trafficking, contrary to s. 5(1) of the CDSA . [ 2 ] Mr. Gough is charged as well with the following offences: (

a) possessing on the above date and place a loaded, prohibited or restricted firearm, namely, a Czech Republic 40-calibre handgun without being the holder of an authorization or license and a registration certificate therefor, contrary to s. 95(1) of the Criminal Code of Canada ; (

b) possessing a firearm as above while not being the holder of a license and registration therefor, contrary to s. 91(1) of the Code ; (

c) contravening as above the Firearms Act respecting the storage, handling, and transportation, shipping, display, advertising, and mail order sales of firearms and restricted weapons with respect to the above 40-calibre firearm contrary to Regulation 117(

h) of the Firearms Act , contrary to s. 86(2) of the Criminal Code of Canada . [ 3 ] Mr. Jesson is also charged with the following offence: (

a) possession at the above time and place of a prohibited weapon, namely, brass knuckles, while not being the holder of a license for same, contrary to s. 91(2) of the Criminal Code of Canada . [ 4 ] Some of the various charges on the Information were amended on October 12th, 2012 at the voir dire with the deletion of the words, "and Wesley Albert Moore" from Count 7 and a new Count 8 was added relating to Mr. Moore. This Count of course abated on his death in May 2013. Mr.

Moore was the third of the three accused initially on the Information before the Court. [ 5 ] The above charges all stem from an investigation originally with respect to a belief that a theft of electricity was occurring at 9553 – 285th Street in Maple Ridge (hereinafter referred to as "the residence") and the RCMP obtaining a search warrant to search the same which was executed on September 17th, 2010. [ 6 ] That day on the search by the RCMP a grow operation containing some 719 marihuana plants was found in the basement of the residence, and Mr. Jesson and Mr.

Gough were found inside the residence, subsequently arrested and charged as above. [ 7 ] The trial commenced June 18th, 2012. A substantial part of the trial commencing with the first Crown witness, Constable Russell, involved a voir dire to deal with various Charter issues and alleged breaches raised by Mr. Jesson and Mr. Moore. On February 17th, 2013, I gave a decision on these Charter issues finding that no breaches had occurred and the trial then continued. [ 8 ] The Crown seeks a conviction on all of the above charges.

The two accused have pleaded not guilty with respect to all of them. [ 9 ] Some of the evidence at the trial was tendered in various written Admissions, however, not all. [ 10 ] RCMP Constable Sprott testified at the trial for the Crown. He took a series of photographs of the residence which were marked at trial as Exhibit 5. [ 11 ] Constable Russell also testified at the trial. He was the lead investigator and tasked Constable Baly to search Bedroom No. 2 wherein certain items owned by Mr. Gough were located, and Constable Auger to search Bedroom No. 1 wherein certain items owned by Mr. Jesson were located.

All bedrooms, including these two, are in the upstairs or main floor of the residence. The front door enters on this level and the bedroom numbers and grow room numbers that were assigned by Constable Russell were set out at the trial in a rough diagram he did of the residence marked as Exhibit 7. [ 12 ] As well, Constable Auger and Corporal Uzelac testified for Crown at the trial. [ 13 ] Mr. Gough testified on his own behalf at the trial; Mr. Jesson did not testify. No other defence witnesses were called at the trial.

The Evidence [ 14 ] I turn now to the evidence, most of which is not in dispute and the majority of which was given by various RCMP officers who assisted in the execution of the search warrant on September 17th, 2010 at 8:32 a.m. at the residence.

No serious submissions were made by either defence lawyer that any police officer was other than a credible witness. [ 15 ] The residence is located on a rural property in Maple Ridge and is accessed up a fairly lengthy gravel driveway which has a gate which was locked when the RCMP first entered the property on September 17th, 2010. [ 16 ] The residence has two floors or storeys; the front door on the south side of the property allows entry off a deck area into the

second or upper storey. One of the living room windows to the left of the front door facing in or north is shown to have what appears to be a metal grid over it on the inside. The same grid is seen in photos of the kitchen window. The front door casing is reinforced with metal strips at the top and on the right side (or deadbolt lock side looking out) with metal and has two additional sliding locks inside mounted on the metal.

There is a wooden key holder within a foot of the front door and a set of keys on a red lanyard were located on this device on the initial search. [ 17 ] The front door enters the living room area and there is a small dining area and kitchen to the west or left on entry through the front door. There are three bedrooms on the upper floor. They are located on the north side of the residence and all are entered off a rear hallway. There is a small bathroom between Bedroom 2 and 3.

There is a door leading outside from the kitchen to the west and in the same area a door leading down a flight of stairs into the basement or ground floor area. [ 18 ] The door leading down to the basement was unlocked as was an interior metal gate inside this door. The metal gate could be locked with two padlocks found hanging on the metal door.

The padlocks could be opened with a key on the keychain on the red lanyard located just inside the front door. [ 19 ] I find based on all the evidence in this case and in particular the above Admissions and the photographs taken by Constable Sprott, Exhibit 5, that the residence was clearly being lived in when the police attended on September 17th, 2010. This is not a case where the residence in which the police discover a grow op is quite barren of objects that one associates with a normal human residence currently in use as such.

Quite to the contrary, the residence had dishes in the kitchen sink and on the counters, food in the fridge and condiments in the kitchen cupboards. There was evidence that dishes were or had been cleaned and laundry done. [ 20 ] The living room had furniture: a coffee table with the sorts of objects in my view that one might expect to see in a house that was being lived in including a set of car keys with a black fob, a magazine and apparently computer game handheld controls, sometimes called "joy sticks".

In addition, there was a large flat screen television and at least two speakers. [ 21 ] Evident as well was a smaller monitor to the right or south of the same with its screen divided into four quadrants and channels, three of which were clearly connected to outside cameras and showed views of the outside of the residence including the front deck where the front door is located. This monitor was in plain view. [ 22 ] The lead investigator on the case, Constable Russell, on entry and when he was approximately one metre inside the front door, detected a strong smell of fresh or vegetative marihuana.

It was not overpowering, but obviously present or noticeable. On entry, he concluded that obviously there was a marihuana grow op ongoing in the residence. He did not hear any noises on entry of the residence; no police officer assisting with the execution of the search warrant testified that he heard any such noises. [ 23 ] Constable Hawes detected a strong odour of growing marihuana on entry of the residence as well.

She first smelled it on the deck, approximately 10 feet from the door. [ 24 ] Once the residence was cleared, Constable Russell reviewed the two grow rooms located in the basement differentiated on his diagram, Exhibit 7, as No. 1 and No. 2 but referred to seemingly by those involved in the production operation correspondingly as Grow Room A and B. [ 25 ] Grow room No. 1, running east to west along the entire front side of the residence had its lighting off. There were 395 marihuana plants therein, 30 to 50 inches high in the budding stage.

They appeared to be hand watered. [ 26 ] There is no evidence in this case to suggest that any of the plants in either of the two grow rooms were somehow automatically watered. [ 27 ] The plants growing in soil were situated on wooden frames mounted on wheels. There were 18 thousand-watt bulbs under shrouds which could be raised or lowered over the plants on a pulley system in each room.

There were four fluorescent lights in Grow Room No. 1, five wall-mounted oscillating fans, two blower fans with what Constable Russell called an air purifier, an air conditioner which one Crown witness called a humidifier, and a CO² generator and tank. The doors to Grow Room No. 1 and 2 were unlocked. [ 28 ] Grow Room No. 2 was also reviewed by Constable Russell.

It runs as well east-west along most of the rear or north side of the residence and had on the northwest corner what Russell described as an electrical room off it accessible from the interior only through Grow Room No. 1. [ 29 ] On entry, 11 thousand-watt high pressure sodium lights similar in mounting to those in Grow Room No. 1 were on. There were 324 marihuana plants two to three feet high in the budding stage, and again Constable Russell believed they were being hand watered.

This room had two 60-watt fluorescent lights, an air conditioner, five oscillating fans which were on and operating, a large blower fan and a CO² generator and tank which ran off propane. Russell said this latter device spread carbon dioxide in the grow room and that the marihuana plants thrived on it in his understanding. [ 30 ] Generally, the photos in Exhibit 5 show that the plants were well maintained. For example, the stems had been trimmed of leaves. [ 31 ] The electrical room contained numerous ballasts connected to the sodium lights and on the wall a large wall calendar or grow

schedule referring to four months – August to November – marked as Exhibit 31. Each sheet covered a month and the three sheets covered a 90-day period of time or cycle. Constable Sprott said that this

schedule contained handwritten references to A and B which he believed related to the two grow rooms. This evidence was not challenged at trial. [ 32 ] In the electrical room there was a timing device which could be used to set the lighting in a grow room for an 18-hour cycle. A day planner was located in this room opened to "Thursday 16th". The two grow rooms had devices to monitor both the temperature and in one case, carbon dioxide, levels.

[ 33 ] The electrical room had a door in the west wall which if opened would lead outside (see Exhibit 5, Photo 247). The exterior door appears to be a metal door. [ 34 ] As with the living room front door, the door jamb or casing area of this metal door appears to be partially strengthened on each side with metal and a metal gate similar to that found in the kitchen extends across the interior of the door opening inside the white metal door. It is shown to be closed. Constable Sprott said that it was locked and that he could not go out it.

He did not try any of the keys found inside the residence on this door or the kitchen door above and said there was no key for either door on the keys found on the coffee table in the living room. Between the gate and metal door at the bottom and across the whole width of the door jamb is a quantity of what appears to be pink insulation. This door does not appear to have been in active use on September 17th, 2010.

As well, in Photo 247 on the left there are two large corrugated pipes, one appearing to go up in a vertical direction. [ 35 ] Corporal Uzelac testified at the voir dire and was then qualified by me as requested by Crown counsel as an expert able to give opinion evidence with respect to the following: Production and possession of cannabis marihuana for the purpose of trafficking, trafficking in cannabis marihuana, consumption, distribution and pricing practices with regard to cannabis marihuana, trends with respect to the production of cannabis marihuana including roles of participants in the production of cannabis marihuana. [ 36 ] By agreement of both defence counsel, his evidence on the voir dire became evidence at the trial.

He reviewed Exhibit 5 for purposes of certain of his trial testimony. He gave the following opinions, well summarized by Crown at paras. 30 to 38 of his helpful closing written submission. The same were based on his experience commencing with his RCMP Depot training in September 2000. The opinions included the following: 1. The marihuana plants in Grow Room No. 1 and 2 were healthy and in the later stages of development, planted in a soil-based medium and hand watered. 3. The grow op was a sophisticated operation.

All the equipment, which I have attempted to describe above including the carbon filter pointed to such an overall assessment. The marihuana plants were cared for, trimmed, free of mould, insects, or mites, disease-free, and requested daily attention including watering and the provision of nutrients. If the plants were left alone, they would die, in his opinion. At most, the crop he saw in the photos could be left in essence untended a day or so.

I understood this to mean if they were not attended virtually daily, the plants would not be as healthy as they were portrayed to be in the photos comprising Exhibit 5. 4. The above wall calendar (Photos 226 and 227) found in the electrical room and notations thereon were consistent with a grow scheduled between August and early November. 5. For purposes of preventing intruder entry, the residence was equipped with a heavy kitchen gate, door locks, and a surveillance system as security devices. 6.

On examination of the day planner (Exhibit 31) located by Constable Baly in the electrical room, the contents were consistent with directions on watering, nutrient application to plants, pH level notations and temperature notations. 7. On examination of the one-page handwritten note (Exhibit 22) found in Bedroom No. 2 stating, "Thursday, March 18th, 2010, week 5, bud side A. WE NEED BLOOM, Thanks Randy" but such a note could be indicative of someone stating they need a particular nutrient for the flowering stage of the plants.

I note Exhibit 5, Photo No. 238 discloses a container of "Bloom" described as a nutrient in the Exhibit index. This appears to be a product trade name. 8. The grow operation in the residence was a marihuana production for a commercial purpose. 9. At a very conservative yield estimate of one ounce of marihuana per plant, there would be 719 ounces of marihuana or 44.9 pounds. The growth cycle was 90 days. At four cycles per year and thus four crops would yield an annual harvest of 2,876 ounces or 179.75 pounds of marihuana. One crop would produce the following revenues: (

a) if sold by the pound: $67,350 to $134,700; (

b) if sold by the ounce: $143,800 (

c) if sold by the gram: $201,320. Again, all figures are for one cycle or one crop. These estimates of value were based on his evidence that in 2010 a pound of marihuana would sell at a wholesale level of $1,500 to $3,000, an ounce for $200.00, and a gram for $10.00. Assuming four crops per year, the annual revenues would be a low of $269,400 to a high of $805,280. These revenues of course would be tax-free to the entrepreneurs involved in the undertaking.

These valuations were not successfully challenged in cross-examination. [ 37 ] Corporal Uzelac testified as to the roles of individuals involved in grow operations and their organization. In a more sophisticated operation especially there can be a variety of individuals who perform specific functions from, for example, an electrician and carpenter who set up the operation, gardeners who tend the crop, a tenant who occupies the living space and provides a means of security and a semblance of normalcy to the location, clippers who harvest the crop, and brokers who grade, price, and traffic the final product.

All these categories of potential personnel are according to Corporal Uzelac working towards the end result which is a successful production and trafficking in marihuana operation. [ 38 ] In the result according to this expert witness, none of whose opinions in my view were strenuously or successfully challenged, one can be involved in the production of marihuana certainly in a more sophisticated type of grow op without actually tending the crop. I

accept this witness's evidence as both true and reliable, including his opinions. [ 39 ] I turn now to the evidence of Constable Auger. [ 40 ] He was a member of the RCMP with approximately seven years' experience in September 2010. On his entry of the residence this date as part of the police team, he observed Mr. Gough come out of the Bedroom No. 2 or the middle bedroom in his underwear. He helped clear the residence initially and then searched Bedroom No. 1. [ 41 ] The police photographs clearly show in my view that this bedroom was being lived in.

For example, in one of the two closets there is clearly shown a substantial wardrobe of clothing hanging from something and at least six pairs of apparently male shoes on the floor. By appearances, no more clothing could reasonably be hung in this very full closet. [ 42 ] There are two dressers in the room, one dark in colour with three rows of drawers, and a mirror attached on top, and a higher, likely six-drawer pine-coloured dresser to the right of same.

The dark dresser has a multitude of items on top in front of the mirror including approximately seven to eight folded items of laundry, some resembling towels. In my experience, people tend to fold clean, not dirty, laundry. [ 43 ] On searching Bedroom No. 1, Constable Auger located some 15 items described as follows and all photograph references are to Exhibit 5: 1. A set of brass knuckles on top of the left side of the dark dresser (Nos. 249, 251, Exhibit 32 at trial). He testified this device was made of metal. 2. A butterfly knife (No. 249) on top of the dark dresser (Exhibit 33 at trial). 3.

A passport on top of the dark dresser in the name of Matthew Albert Jesson (Nos. 249 and 250, Exhibit 34 at trial). There is no dispute that this is the accused's passport. Clearly, the photo shown in No. 250 of the holder is a likeness of this accused who appeared before the Court. The date of issue is shown to be May 14th, 2010. No one checked the address page when this document was found. 4. A photo album (No. 249) located on top of the dark dresser or possibly under a towel thereon (Exhibit 35 at trial).

This photo album contained some 24 photographs which on review some but not all include what appears to be likenesses of Mr. Jesson at various ages and of two vehicles and two motorcycles, one a two-wheeler, the other apparently a three-wheeler. Three show young children. Several show young women, typically in an affectionate pose with another person. These various photos are almost without exception what one would typically call personal mementos, being souvenirs of persons and/or events or I suppose items. They are the kind of things one regularly sees in people's homes and offices among other places.

In my experience, people decorate a living environment or have such things in such an environment. 5. In Bedroom No. 1 there was a box found next to the top end of the bed (Photo No. 253). It has also been described as a black stool found with its lid on by Constable Auger. On top is a statue of the NFL football player, Peyton Manning, which looks to be about a foot tall, and a cell phone.

Inside this stool, Constable Auger found a loaded magazine, Exhibit 36, a hard pistol case with no gun therein, but Constable Auger could not recall if it was open or closed when he seized it (Exhibit 37) and a closed box of 40-calibre ammunition (Exhibit 39. See Photo No. 254). None of these items when found were in plain view. 6. A quantity of T-D Canada Trust bank documents were also found in Bedroom No. 1 on the left corner of the pine dresser (Exhibit 39 at trial). These documents appear to be undated. One provides a new PIN for Mr.

Matthew Jesson at a mailing address shown as 153 Baltic Street in Coquitlam (Photo 184). There is no evidence as to what this address is or was beyond Mr. Jesson giving it to the police on his arrest. On cross-examination of a police officer with respect to this address, the evidence is as follows: Mr. Conroy Q: And he then gave you an address, didn't he? A Yes, he did. Q And it was 153 Baltic Street in Coquitlam, wasn't it? A Yes, it was. The Court: 153 – Mr. Conroy: Baltic Street. The Court: Baltic Street. Mr. Conroy: B-a-l-t-i-c. The Court: Yeah. Mr. Conroy Q: Which was a different address, wasn't it?

A Yes, it was. The noun used by Mr. Conroy was "address" not, for example, "current residence". 7. A SOG knife was found on top of the pine dresser (Exhibit 40 at trial). No photo was taken by Constable Sprott. Constable Russell testified that SOG referred to the manufacturer's name.

8. An LG knife was found inside the bottom drawer of the pine dresser (Exhibit 41 at trial). 9. A throwing axe was found on the top shelf of one of two closets in the bedroom (Exhibit 42 at trial). 10. An old, dry marihuana plant was found on the top shelf of the right hand closet in Bedroom No. 1, and a Ziploc bag containing old dry marihuana buds and a dry stem outside the baggie. This was located in the same closet as the throwing axe. Neither it nor this dried plant material was in plain view (Exhibit 43 at trial. See Photo 183). 11.

Various documents with the name Matthew Jesson were found in a drawer of a nightstand with a fish tank on top on the left side of the bed, marked as Exhibit 45 at trial. There are 16 documents or groups of documents in this item as follows: (

a) account statements from Westminster Credit Savings Union, January 2009 to March 2009 to Matthew Jesson with a mailing address at 1190 Esperanza Drive. I note this is the same address Mr. Gough gave to the RCMP on September 17th, 2010 when he was fingerprinted whereas Mr. Jesson then provided an address as I have said of 153 Baltic Street. There is no evidence as to what this Esperanza Drive address is or was on September 17th, 2010; (

b) one document is a cheque dated December 1st, 2008 with the 1190 Esperanza Drive address imprinted thereon; (

c) there is an Eagle Ridge Aquatic Centre Physiotherapy list of exercises for Matthew Jesson dated April 8th, 2009; (

d) a B.C. Hydro invoice in his name with the Esperanza address dated April 22nd, 2009; (

e) a National Geographic subscription solicitation to Matt Jesson, 153 Baltic Street, dated 2/8/10; (

f) a Discount Car and Truck Rental invoice to Matthew Jesson at 153 Baltic Street for a one-day car rental ending March 28th, 2009; and (

g) a Terasen Gas bill to Matt Jesson April 21st, 2009 with a "service address" of 1190 Esperanza Drive; (

h) this Exhibit further includes an ICBC Temporary Operation Permit and Owner's Certificate for a 2006 black Yamaha motorcycle expiring May 17th, 2008; (

i) a similar ICBC document expiring April 13th, 2008. Both show the applicant as Matthew Albert Jesson and set out an address of 153 Baltic Street; (

j) there is a T-D Canada Trust account solicitation document dated January 2010 to Mr. Matthew Jesson at 153 Baltic Street; (

k) two receipts from the Eagle Ridge Aquatic Physiotherapy dated March 27th, 2009 and April 1st, 2009, both directed to Matthew Jesson. (

l) there is a two-page chart of various types of marihuana seeds entitled on p. 1 "Vancouver Seed Bank Dutch and U.K. Genetics" and p. 2 below the name Vancouver Seed Bank, "Premium Canadian Genetics". These two documents bear one date only at p. 1 "updated 10-14". Page 1 lists 13 marihuana strains if you will, p. 2 lists 61 strains with names such as "Brain Warp" described as "Indicia Height 7 feet. A B.C. Favourite, sweet piney flavour with a kick. Flowering time I believe 49 days indoor mid-September outdoor" with an indicated price of $70.00 it is unclear for what. [ 44 ] Lastly, this collection of documents includes the following: (

m) Four photos all apparently of or including Mr. Jesson; (

n) a General Waterfront Safety Training card in the name of Matthew Jesson, undated; (

o) a City of Burnaby Leisure Card for Matt Jesson containing a photo; (

p) apparently the fronts of two mobile equipment operator certification cards issued by BCIT confirming Matthew Jesson has qualified on two dates: February 6th and May 29th, 2002 to operate two classes of lift trucks, both cards bearing an expiry date of 2004. This concludes the description of all documents in Item 11. These documents were collectively as I have said marked as a group as Exhibit 45 at trial. None are really current. None bear the residence address. None bear a name other than Mr. Jesson's in some fashion, for example, Matt or Matthew, and with or without a middle name. 12.

The two-page chart found in a drawer in the same nightstand as in Item 11 above. Constable Auger could not say in which drawer it was found. This document contains what appears to be photographs of plant material which to me looks like marihuana and on one page is entitled "20 grams/20 strains". One strain referred to thereon, for example, No. 13, is called "Eh Train High Voltage". The other page has photos of 16 apparently strains, none shown on the above page, but bears a reference "Cannabis Culture: Marihuana Magazine". These two pages were marked as Exhibit 46 at trial. 13.

An empty pistol magazine was located by Constable Auger on the same nightstand as in 11 and 12 above. No cartridges were found near it (Exhibit 47 at trial). Constable Russell said this magazine stated calibre 40 or "cal 40" made in Brazil, referring to the calibre of ammunition it would hold which was consistent with the 9 millimetre handgun they found at the residence. 14. A cell phone was located in plain view on top of the stool in front of the Peyton Manning statue in this bedroom located on the right side of the bed (Exhibit 48). 15.

Constable Auger noted when he searched this room that there was clothing beside this stool on the floor but could not state what

kind. Generally, however, he testified there was male clothing and shoes in this room but did not note sizes for same. [ 45 ] Constable Auger testified that he first saw Mr. Jesson at the front door of the residence. He then went back inside and came out later. He was the first person to speak to Mr. Jesson about putting the dogs away. He assisted in getting some clothing for both Mr. Jesson and Mr. Gough following their arrest which he grabbed from somewhere in the house. He said he had no dealings with Mr. Gough and did not search Mr. Gough. It was Mr.

Jesson who first suggested to the RCMP according to Constable Russell that he was going to put the dog or dogs away. This was when he first came to the door following the "knock and announce". Jesson was inside the residence and the police were outside. Russell agreed that Jesson had done so so that there would not be a problem caused by them for anybody.

The dogs according to Constable Russell were barking at the time and being what he described as a "pain in the ass". [ 46 ] Constable Auger unlike Russell recalled there were three dogs in total, two bigger ones and one smaller one. [ 47 ] I find there were three dogs in the residence when the police attended on September 17th. I prefer Constable Auger's evidence on point to that of Constable Russell. I do, however, accept Constable Russell's evidence as true and reliable that they were barking and were being a "pain in the ass".

They were clearly part of the residence security system and I so find. [ 48 ] I turn now to the evidence of Mr. Randy Michael Gough who testified at trial in his own defence. [ 49 ] He was 27 on September 17th, 2010. He had known his co-accused, Mr. Jesson, since he was age 13 or 14 because he was a friend with Jesson's little brother. They then both lived in Coquitlam. He had known Mr. Moore from age 14 onward.

They had gone to school together and he was a friend of Moore's. [ 50 ] On September 16th, 2010 he recalled he was drinking at a strip club called "The Caddyshack" in Maple Ridge with several people, one being Mr. Moore and a few others. He got there between 11:30 p.m. and 12:00 o'clock midnight. He had started drinking beer and hard liquor earlier about 5:00 p.m. He agreed he was fairly intoxicated before he ever got to The Caddyshack. He drank at a friend's home and in answer to several questions from the Court, said he thought it was located on Austin Avenue. A couple of unnamed friends were there.

They had been there all afternoon but they only started drinking at 5:00 o'clock p.m. When I refer to an unnamed friend, I simply mean that Mr. Gough did not in his testimony provide the names of the friends. [ 51 ] Mr. Gough was at the time injured and was not working on September 16th and had no jobs around this date. He had no source of income. He was asked by his counsel where he was living around September 16th and he responded, "I was staying at several residences, but not paying rent". He was "couch surfing". He gave no addresses in his direct evidence.

When asked if he recalled the address he had been staying at before September 17th, he said it was in Coquitlam and that he had some personal items there. He did not say what the items were. [ 52 ] He was at The Caddyshack for several hours; he estimated two to two and a-half hours. In his evidence he said he drank over 15 drinks. He estimated 10 to 20 from when he started drinking until he left The Caddyshack approximately nine hours later. Seven would be beer, the balance hard liquor including some shots and some doubles. He therefore agreed that he had more than 10 to 20 standard one-ounce drinks.

His friends bought the drinks. This evidence I observe did not quite explain how he paid for the drinks he drank alone before going to an unnamed friend's place later on September 16th. [ 53 ] He had his passport application with him at this bar which he said he was filling out at another friend's house.

He did not state when asked if he had any personal items with him at the bar that he also had his birth certificate in a different pocket in his pants from that which his passport application was in. [ 54 ] Later in his direct evidence he was asked if among the items that were related to him on September 17th, 2010 was there a birth certificate and answered affirmatively, explaining that it came in the mail "at a address he was staying at" (sic) and confirming it was in his possession at the residence this day.

The birth certificate came from 953 Stewart Avenue in Coquitlam. [ 55 ] The clear sense of his evidence was that this document had recently arrived in the mail and that 953 Stewart Avenue was where he was staying on September 16th prior to going to the residence. He was shown and identified Exhibit 24 as his birth certificate. In cross-examination, he said he was staying with a friend on Stewart Avenue and had done so for a couple of months, long enough to have his birth certificate sent here.

His worldly possessions were kept there. [ 56 ] He testified that he left the strip club at closing after 2:00 o'clock a.m. with Mr. Moore and another again unnamed individual and took a taxi to a house he had never been to before which he assumed was Moore's because he brought him there. The house was the residence in issue in this case. [ 57 ] On arrival, he saw no car in the driveway or elsewhere. Also on arrival and after dropping off the above individual, they hung out, smoked pot, played poker for several or about three hours, and then went to bed in the early morning hours, early in the a.m.

He did not give a precise time. He did not know where the marihuana came from that he had smoked. He said his level of intoxication when he went to bed was high from smoking marihuana and drinking. [ 58 ] He did not get a tour of the residence on arrival and had not been in the basement and did not on September 17th know there was a grow op there, nor did Moore tell him there was one there. He did not smell vegetative growing marihuana at the residence in the early morning hours of September 17th. He said his sense of smell was terrible.

He did not state initially in his direct evidence that he did not know what smell vegetative or growing marihuana gave off, but did say in cross-examination he was not aware of the smell of growing marihuana. His sense of smell had been bad since his mother accidentally hit him with a baseball bat as a kid at age 11 or 12. [ 59 ] He said he drank between six to 12 beers on arrival at the residence and smoked multiple marihuana cigarettes Wes had, referring of course to Mr. Moore.

He estimated he smoked a little over a gram of marihuana following his arrival. [ 60 ] I find based on his evidence that he would have arrived at the residence close to 3:00 o'clock a.m. having regard to his prior evidence that he left the strip club after 2:00 o'clock a.m. and was there for two to two and a-half hours. In doing this analysis, I do not

accept or reject his evidence as true or untrue at this juncture. [ 61 ] He went to a bedroom. He had never been in this bedroom before. He was asked if he had any personal items in that bedroom and said he did not besides the passport application. He could not identify the room that he slept in on a review of the police photos of the bedrooms in the residence. [ 62 ] He recalled being photographed in the rear of the police cruiser at the scene and did identify himself in Exhibit 5, Photo No. 157.

He said on review of the Exhibit 5 photos there was no photograph of the bedroom he slept in which his counsel referred to as Bedroom No. 2 as it is called. He did not make up the bed he slept in and initially went to it without any direction on his own. He noticed nothing uncomfortable about it. [ 63 ] He later learned from an RCMP officer that there was a firearm found in the bedroom he slept in. He testified he did not know it was there nor had he seen it. Defence counsel then showed him Exhibit 5, Photo 259 and asked if he could say that was the mattress that he slept on and he said it was.

He remembered it was a fairly thick mattress he had slept on. [ 64 ] He was shown Exhibit 5, Photo 261, of a magazine with bullets in it and he testified he did not see it on September 17th, 2010 at the residence nor did he have any physical contact with it. [ 65 ] He did not have a vehicle at the residence. Mr. Gough was shown the note, Exhibit 22, and did not recognize the writing on it and denied he had written it including the name Randy, the given name on the birth certificate and on his passport application (Exhibit 21) for example, as distinct from Randall.

He did not know any Robert Thurlow, the name on a driver's licence found in a wallet in Bedroom No. 2 (Exhibit 23) and said it was not his wallet and he had had nothing to do with it. He vaguely recalled a dog being present when he was playing poker and seeing it for a second or two. I have found there were three dogs present. [ 66 ] When asked if he saw some sort of video surveillance system, he said no, he did not see one and then "I vaguely don't remember" but said he saw a TV-type thing, an old TV in the living room. He did not recall there was a security system.

The only rooms he was in the whole time were the living room, a bathroom, and the bedroom he slept in. Nothing else. [ 67 ] He did not know the house had a basement because from the outside, it just looked like a rancher so he assumed there was none. This is the assumption made on the evening he went there.

He did not know of the basement when he went to bed. [ 68 ] I find based on his evidence and again without assuming or finding it is truthful or false, that this event, namely, his going to bed would have occurred about 6:00 o'clock a.m. allowing for three hours of poker, drinking, and smoking of marihuana following his arrival. This is so notwithstanding his testimony in answer to a question from the Court where he agreed he turned in and went to bed around 5:00 o'clock a.m. or something in that ballpark. [ 69 ] He agreed he was extremely, extremely intoxicated from alcohol and high on pot when he went to bed.

No one directed him to Bedroom No. 2 and he testified he did not really care where he slept on the evening in question. [ 70 ] In cross-examination, he was asked by counsel: Q You were so drunk that it was all you could do to simply find the right bedroom that is not occupied, take your clothes off, and stumble into bed? A Yes. [ 71 ] He testified that Mr. Jesson was not at the strip club when he had been there and that he did not see him on arrival at the residence with Mr. Moore, only in the morning when they were both arrested. He first saw Mr. Jesson when he opened the door for the police.

He did not know if the dog he saw was Mr. Jesson's. The next morning, he vaguely recalled seeing Mr. Jesson deal with the dogs and put them into the bedroom that he had slept in but said he was not in it when he saw Jesson do this. When questioned by defence, he said he had not seen more than one dog the night before but did the next day. [ 72 ] He was awoken on September 17th with a banging on the door between 7:30 and 9:00 o'clock a.m. According to the RCMP evidence, this event occurred at about 8:30 a.m., some two and a-half hours after he first turned in.

When he was taken out by the police, he was in his shorts and the clothing he was later given by them was not his. In his direct evidence, there then followed this exchange: Q Do you know what happened to your clothing? A It's in the – in my room, I guess, or the room that I stayed in. [ 73 ] On cross-examination, he mentioned the passport application had been folded by him in thirds (like a letter) and put in his back pants pocket. He gave no evidence as to how it might have ended up in the desk drawer in the bedroom he slept in.

He said he had no identification with him "next to his birth certificate" as you "didn't need photo ID to get into The Caddyshack" and said they had not identified him I understood on September 16th, 2010 prior to his entry in this club. [ 74 ] Finally, in cross-examination and at the outset of same, Mr. Gough testified as follows in answer to questions put by Crown counsel: Q So the

summary of your evidence Mr. Gough is essentially that you were drunk and you were high that night. A Yes. Q You have very little recollection of that night? A Yes.

Q You have very little recollection of the residence? A Yes. Q You know nothing about it? A Yes. Q And you just essentially lucked your way or unluckily found yourself in that residence? A Yes. Q That's the sum of your evidence? A Yes. [ 75 ] As I have pointed out above, later in his cross-examination the degree or state of his intoxication seemed to worsen to the point of his being extremely, extremely intoxicated. [ 76 ] I turn now to a

summary of the evidence in this case relating to keys. [ 77 ] The case law is uniform in stating that the general proposition that keys can be seen as providing a measure of control over things, for example, spaces like apartments or automobiles. This I think is in accordance with common sense. [ 78 ] There were two sets of keys found in the residence. Where I use the noun "sets" this can include one or more keys on the device in common parlance often called a key ring. Nothing in my view turns on the precise number of keys on any of the following objects: 1.

A set of keys found by Constable Baly on the coffee table in the living room in plain view together with a black fob. As admitted, Constable Baly pressed the fob on September 17th, 2010 and found that horn sounds emanated from the black Ford Expedition in front of the residence, bearing licence number 347SFF occurred. This vehicle was registered to Matthew Albert Jesson on September 17th, 2010 (see Exhibit 2). The registration enquiry made on June 13th, 2012 shows Mr. Jesson's address as 468 Draycott Street in Coquitlam.

A second key on the ring was found by Constable Sprott to open the deadbolt lock on the front door (see Photo 256). It clearly shows this key ring. Sprott said he tried the car key as well. There were no fingerprints found on this key ring or keys nor does it contain any other keys which based on the evidence might open the padlocks on the gate in the kitchen at the top of the stairwell leading down to the two basement grow rooms, or any other locked door in the residence (see Photos 188, 189 and 256). 2. A set of keys hanging to the immediate right of the front door on a red "Canada" lanyard (Photo 265).

Constable Sprott testified that one key on his lanyard fit both kitchen gate padlocks (Photo 167). Constable Russell testified that he used these keys to open both padlocks on the kitchen gate. I conclude that at least as things stood on the morning of September 17th, 2010 anyone inside the residence could use this set of keys ready at hand and in plain view to open the two padlocks on the kitchen gate or lock them thereby controlling access to the two basement grow rooms that were not shown on the evidence in this case to be otherwise locked in the basement.

The two grow rooms were as found unlocked were readily and easily accessible by anyone on the main floor or were so even if locked. Anyone possessing a door key to the front door of the residence could easily access these keys on entry if they were located where they were found on September 17th by the police.

There is no evidence the front door of the residence had more than one deadbolt lock or other lock requiring a second key to allow someone outside access to the interior of the residence. [ 79 ] The above wallet (Exhibit 17) and cards therein found on the coffee table in the living room contained among other items the following: (

a) a B.C. Maritime Employers' Association ID card issued November 20th, 2002 with 153 Baltic Street, Coquitlam, shown to be the address in Mr. Jesson's name; (

b) a birth certificate, wallet-size, for Mr. Jesson issued August 1st, 1986, showing his date of birth to be August 8th, 1981, making him age 29 on September 17th, 2010; and (

c) a driver's licence issued to him August 9th, 2007, again with the above Baltic Street address. [ 80 ] There is no credit or identification or like card bearing a residence address in the wallet and forming part of Exhibit 17. [ 81 ] There is other evidence or a lack of evidence if you will in this case worthy of note. No fingerprints were found on the handgun, any magazine, or the box of shells for either accused. None were found on anything the police sent in for forensic examination. There is no evidence exactly where the Gough birth certificate (Exhibit 24) was found in Bedroom No. 2.

The beds in all three bedrooms appeared to the RCMP to have been slept in. The beds in Bedroom No. 1 and 2 were made up. [ 82 ] In my view, the presence of both clean and dirty dishes in the kitchen, the state of bedrooms including folded laundry in Bedroom No. 1 is strong evidence that the residence was being lived in and cared for. A currently dated Province newspaper appears on the bathroom floor near the toilet. [ 83 ] A Hydro by-pass was located in the attic area, hardly in plain view.

[84] No currently dated document was found anywhere in the residence bearing the residence address. Exhibit 14 for example, theBell disconnect notice, bears a date about two months prior to the alleged offence date. The date on Exhibit 15 documents are morecurrent and do bear the residence address. [85] On Mr. Gough's passport application (Exhibit 21) the address of permanent residence is not completed as to "number and street"but he has filled in the name of the city and province as "Mission, B.C".

This is a different address than that at which he said he hadreceived his birth certificate and that which he later gave the police at the Coquitlam Detachment following his arrest. [86] There is no evidence as to clothing sizes in either Bedroom No. 1 and No. 2. No keys were found in either bedroom. No photosassociated with Mr. Gough were found in Bedroom No. 2 or anywhere in the residence. There were no photos of the residence amongany of the photos the police saw or seized. There was no cell phone associated with Mr.

Gough found in Bedroom No 2 and no evidencethe cell phone in Bedroom No. 1 was associated with Mr. Jesson. [87] Constable Russell agreed the handgun located under the mattress in Bedroom No. 2 was not clearly visible when he entered thisroom. It was therefore not in plain view. He agreed the mattress was a thick one. He testified Mr. Jesson answered the door followingthe police knock and announce and believed both he and Mr.

Gough were sleeping when the RCMP arrived at the residence thatmorning. [88] Constable Manning drove both Gough and Jesson to the Coquitlam RCMP Detachment, leaving the residence at 9:19 a.m. andarriving at 9:58 a.m. They were initially both clad only in underwear but before they left the scene both were clothed. There is noevidence as to where inside the residence the clothing came from. Manning made no note that either accused en route in the rear of hiscruiser smelled of marihuana, but he did not know if the vehicle's windows were open or closed en route.

Manning did have a note ofthere being an odour of marihuana around the residence. [89] Constable Auger on entering the residence saw Mr. Gough clad only in his underwear coming out of Bedroom No. 2. No policeofficer testified that Gough then or at any time appeared intoxicated or smelled of liquor. [90] The photographs of one closet in Bedroom No. 1 show vent piping or ductwork leading from floor to ceiling touching thehanging clothing on the left which according to Constable Sprott appeared to be added on after the residence was built. [91] Constable Russell agreed Mr.

Jesson's name was not to be found in the daytimer book (Exhibit 31) found in the electrical roomin the basement nor was Mr. Gough's. [92] Constable Russell testified that two persons I understood with surnames Van Leer and Walker owned the residence in question. Mr. Conroy has provided their given names, James and Sheila. [93] The B.C. Hydro account at September 17th, 2010 was in the name of the deceased accused, Mr.

Moore. [94] There is no evidence that either of the accused were legal tenants in the residence, for example, signatories to a written leasemade between either and one or other of the two owners. [95] There was no note or like document located in Bedroom No. 1 that was brought to Constable Russell's attention similar toExhibit 22 containing any instructions on how to grow marihuana. I have indicated above something of the content of Exhibits 45 and46 on point.

The Law [96] I have reviewed and considered some 31 cases in this matter provided both by defence and Crown and including two I drew tothe attention mostly of counsel. [97] One case, R. v. Ferris, 2011 BCPC 52 was a decision I gave in a grow operation matter on February 14th, 2011. Therein Iattempted to set out the relevant principles gleaned from higher authorities in the context of a grow operation case and as in the case atbar involving two charges under the Controlled Drugs and Substances Act pursuant to ss. 7(1) and 5(2). Neither defence counselsuggested I had erred in my attempted

summary of the authorities.

I will not repeat what I said there in this case. [98] In this case as in Ferris, supra, the possession Crown must establish with respect to Count 2 under s. 5(2) of the CDSA isconstructive possession as distinct from personal possession as no drugs were found on the person of either accused. [99] Section 2(1) of the CDSA incorporates into the statute the definition of possession and s. 4(3) of the Criminal Code with respectto possession. [100] Section 4(3) of the Criminal Code identifies three forms of possession and under each form in the definition knowledge andcontrol are the key elements (see R. v.

Vu, 2002 BCCA 659 para. 17 quoted with approval in R. v. Ngo, 2009 BCCA 301 at para. 51). [101] The three forms of possession are described in R. v. Anderson (1995), (BC CA), 67 B.C.A.C. 311 at para. 14,namely: 1. Personal or actual. 2. Constructive possession. 3. Joint possession. [102] Possession under the CDSA must include:

1. Both knowledge; and 2. Some act or measure of control over the substance, here marihuana (see R. v. Terrence (1983) (SCC), 4 C.C.C.(3d) 193 (S.C.C.) [103] One can possess a drug for purposes of trafficking under s. 5(2) of the CDSA without producing it (see R. v. Vu, supra, para.27). Possession is also not an included offence in cultivation. The two offences are separate and different. Proof of one does notnecessarily lead to proof of the other. [104] For this latter offence of production, the gravamen is active participation in the growing of prohibited plants (see R. v.

Ngo,supra, paras. 3 and 52). [105] One may be found guilty of production either as a principal or as a party who aids or abets the principal (see again R. v. Ngo,supra, para. 52 and R. v. Hubble, 2002 BCCA 561 at paras. 10, 15 and as well s. 21 of the Criminal Code of Canada). [106] An accused in a grow operation case may be found to have aided and abetted in the production of marihuana by maintaining theenvironment in which it was produced with the purpose or intent to assist in the crime (see again R. v.

Ngo, supra, para. 52). [107] Constructive possession requires more than quiescent knowledge on the part of an accused (see R. v. Caldwell, 2001 BCSC1313, para. 24, Romilly J. and R. v. Terrence, supra). Quiescent means inactive, dormant or motionless. [108] For proof of control for purposes of constructive possession, Crown need not prove actual physical control by the accused overthe drugs in question. Power or authority over the drug would seem to be sufficient (see R. v.

Terrence, supra). [109] The Court must consider all the evidence found at the premises to determine whether or not an accused has constructivepossession of drugs (see R. v. Caldwell, supra, para. 27). [110] Where there is no direct evidence regarding the essential elements of constructive possession, the Crown may rely oncircumstantial evidence to establish possession (see R. v. Chiem, 2002 BCPC 587 following R. v. Caldwell, supra). [111] Passive acquiescence is not sufficient to prove the element of consent referred to in s. 4(3)(

b) of the Criminal Code definition(see R. v. Miller (1984), (BC CA), 12 C.C.C. (3d) 54 (B.C.C.A.)). Put another way, mere standing by in the criminalact of another is not an offence and not a basis for criminal responsibility (see para. 36 of R. v. Tran, 2003 BCPC 529). [112] To establish possession, the Crown must prove that the accused had knowledge of the existence of the drug in question and of itsnature or character (R. v. Anderson, supra, paras. 14 to 16 followed in R. v.

Lee, 2006 PC 404 at para. 30). [113] Knowledge need not be proven by direct evidence but may also be inferred from surrounding circumstances. The inference mustbe proper and based on proven facts (see R. v. Ngo, supra, para. 43 and R. v. Lee, para. 30). [114] The trial judge where the Crown relies on circumstantial evidence must be able to conclude beyond a reasonable doubt that theknowledge of the drug in question on the part of the accused is the only reasonable inference to be drawn from the proven facts (see R. v.Cooper (1977), (SCC), 34 C.C.C. (2d) 18 at 33 (S.C.C.).

Inferences must not be based on speculation (see R. v. Ta,2010 ABCA 145 para. 15). [115] In R. v. Ngo, supra, at para. 54 Rowles J.A. dealt with how a trial judge should consider circumstantial evidence in this way: [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. [116] The question that I am to answer in this case certainly with respect to Counts 1 and 2 the ss. 7(1) and 5(2) CDSA charges isreferred to in para. 60 of Ngo, supra, as follows: [60] … In this case, the question is whether, on the whole of the evidence, the trial judge could reasonably have concluded beyond areasonable doubt that the appellant had the required knowledge and control respecting the grow op, and on the charge of production,whether he participated in the growing of plants or aided or abetted in the production of the marijuana. [117] The case at bar has some similarities to the Ngo, case supra, where our Court of Appeal concluded that the Crown case againstthe accused was entirely circumstantial.

In such cases the result is said to be fact dependent (see R. v. Ngo, supra para. 58). [118] Bauman J.A. (as he then was) in R. v. He, 2008 BCCA 418 at para. 48 quoted with approval by Rowles J.A. in Ngo, supra, atpara. 57 seems to suggest that a comparison of such decided cases and the results is of little utility as they are all fact dependent andinvolve inferences drawn from their own facts by trial judges. The cases are said to be of assistance to the extent that they discussrelevant legal principles (see, for example, R. v.

Ngo, supra, paras. 57 and 58). [119] Hence I intend to resist setting out in these reasons why I think the multitude of cases placed before me are capable of beingdistinguished on the facts or why they are factually similar to the case at bar. Some are, some are not. Often a reported decision basedon circumstantial evidence can be distinguished on a point as simple as the police executing a warrant not smelling vegetative marihuanain the building containing the grow op or a found-in accused not having a key or other means of controlling access into or out of thepremises.

I am alive to these kinds of factual distinctions in the cases, all of which I have carefully reviewed in preparation of writingthese reasons. No useful purpose would be served in setting them all out, 31 times. [120] I turn now to the position of the parties. I intend to deal with the CDSA offences first and make necessary findings of fact and a

decision on them before dealing with Counts 4 to 7 on the Information dealing generally speaking with weapons or like items. Position of the Crown [121] Mr. Ip argues that Mr. Gough is not a credible witness and upon application of the test in R. v. W. (D.), (SCC),[1991] 1 S.C.R. 742 I should find that I have no reasonable doubt with respect to all counts relating to him, particularly because of hisevidence. [122] Further, Crown asserts that it has proven beyond a reasonable doubt that Mr.

Gough was either a principal in the production ofmarihuana or alternatively as a party aiding and abetting the offence pursuant to s. 21 of the Criminal Code. [123] Crown asserts that it has proven possession for purposes of trafficking against Mr. Gough as well beyond a reasonable doubt,and asserts the only rational inference to be drawn on all the evidence in this case is that of his guilt. [124] Crown's position with respect to Mr. Jesson is virtually the same as with respect to Mr. Gough for Counts 1 and 2. Position of the Defence – Mr. Gough [125] Mr. Thorhaug argues that Mr.

Gough is a credible witness and I should believe him or at least have a reasonable doubt based onhis evidence and I think too based on all the evidence in the case. [126] He relies on R. v. W. (D.), supra, and stressed that Mr. Gough was neither a professional witness nor a perfect witness at trialand said he seemed to answer questions put to him truthfully. Mr. Gough was therefore merely present at the time of the arrest.

He wasa visitor or found-in with no legal interest in the residence or any involvement in the activities therein. [127] He places particular emphasis on the lack of forensic evidence, for example, fingerprints, photographs, receipts or otherdocumentary evidence that might link Mr. Gough to the grow op in the basement, for example, a receipt for purchase of electricalequipment. His mere presence at the scene is not a sufficient basis for a conviction. [128] Mr. Thorhaug also adopts all arguments made by Mr. Conroy on behalf of Mr. Jesson insofar as they are relevant to his client,Mr. Gough. [129] Mr.

Thorhaug relied on R. v. Chalmers in asserting if I believed Mr. Gough then he had no ability to control access to thebasement grow op and submitted there was no evidence Mr. Gough was involved in the production of the crop. [130] As to how the passport application, once folded in his pants pocket, got out of same and into the dresser drawer where it wasfound, Mr. Thorhaug submitted simply that he probably took it out of his pants and put it in or around the dresser in Bedroom No. 2. Irepeat, there is no evidence on this point which was one of some significance to the Crown. Position of the Defence – Mr.

Jesson [131] Mr. Conroy's closing submissions were lengthy and involved two components, a 23-page written brief that was most helpful andextensive oral submissions either amplifying its content or adding to it. [132] His final conclusion is simply put in para. 40 of his written submission that the Crown had not proven its case on any CDSAcount against Mr. Jesson beyond a reasonable doubt and very specifically had failed to establish Mr.

Jesson had any measure of controlover any of the marihuana found anywhere on the premises including the basement grow operation. [133] At best, there was an indication that he had been at the residence at some point in time but no evidence to indicate the length oftime nor did Crown prove he had the requisite knowledge of the grow operation or did anything to assist with production of themarihuana. [134] He said in

part in his oral submissions, without in any way backing away from the above conclusions, that the real issue in thiscase was control. Much of Mr. Conroy's written argument involved drawing to my attention the facts, findings and legal principle in themany cases in his brief. [135] I cannot begin to fairly summarize all the multitude of points made by Mr. Conroy in his above lengthy closing submissions. Ihave nonetheless reviewed all of them and carefully considered all of them. I will deal with some in the discussion that follows. Certainly, Mr.

Conroy made it very clear to me that in his view the only reasonable inference to draw on all the drug related evidence inthis case was that Mr. Jesson had not been shown beyond a reasonable doubt to have both the required knowledge and control of thegrow operation and participated as a principal therein or aided or abetted in the production of same. Discussion [136] I intend to deal firstly with Mr. Gough and make findings as to his credibility and once done, deal with Counts 1 and 2 againsthim under the CDSA, and then deal with the evidence in relation to Mr.

Jesson on the same counts and resolve them, before turning toCounts 4 to 7 on the Information before the Court. The Law with Respect to Credibility [137] There are many factors a trial judge can consider in assessing credibility. Some are conveniently set out in a decision of A.Rounthwaite P.C.J. namely R. v. Parent, 2000 BCPC 11 at paras. 4 and 5. One factor she refers to in para. 5 of her reasons at item 5 isas follows:

5. the "sense" of the evidence. When weighed with common sense, does it seem impossible or unlikely? Or does it "make sense"? [138] In para. 9 of her reasons in R. v. Parent, supra, this judge also uses the phrase "ring of truth". Other judges in reported caseswhen dealing with the sense of a witness's evidence ask whether or not there is an air of reality to it?

Judges are both permitted andencouraged to use their common sense and I think too, their life experience, perhaps an important aspect of what one's common sensetells one in assessing a witness's credibility. [139] A higher authority on this important point is the British Columbia Court of Appeal decision in Farnya v. Chorny (1952), (BC CA), 2 D.L.R. 354 a judgment given by O'Halloran J.A.

This well-known case encourages trial judges not to rely toostrongly on the demeanour of a witness or the fact that his or her evidence remains uncontradicted, but rather we should be concernedwith whether the evidence of the witness is consistent with the probabilities affecting the case as a whole.

The test if you will is repeatedat p. 4 of the Quicklaw report of the reasons in this case as follows and I quote it in part: [11] The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test ofwhether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to anexamination of its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth ofthe story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informedperson would readily recognize as reasonable in that place and in those conditions. [140] I have considered all these principles in assessing the credibility of Mr. Gough. Discussion – Mr. Gough [141] I do not find Mr. Gough to be a credible or reliable witness.

I find I believe very little of what he said in his testimony before mebeyond his age and agreeing he had slept at the residence on September 17th, 2010 before his arrest, and was wearing only boxer shortsat the time. [142] I find that Mr. Gough's story, succinctly summarized by Crown counsel in his opening questions in cross-examination, does notmake sense, nor is it in accordance in my view with the probabilities that surround or would surround the existing conditions at thematerial time. [143] I will set out the basis for my finding as to his credibility.

These various points that follow are not set out in any particular orderor priority in my assessment: 1. Mr. Gough seemed to exaggerate the state of his inebriation as his evidence progressed, moving from high or drunk to agreeinghe was extremely, extremely intoxicated when he went to bed. His evidence on point was internally inconsistent as well. If believed,and I do not believe it, it would arguably provide some excuse, I suppose for him not at least smelling the marihuana below him on hisarrival at the residence or while there. 2.

Importantly, he said he had consumed in some 13 hours a very significant amount of alcohol, more than 10 to 20 drinks, somedoubles of hard liquor before leaving the strip club at approximately 2:30 a.m. and between six to 12 beers at the residence, as well assmoking one ounce of marihuana. Had he consumed such a prodigious quantity of alcohol, he would have been truly wasted on turningin as I have calculated by his evidence at or about 6:00 o'clock a.m. Mr. Gough is not a very big man, stating on his passport applicationthat he is 5 feet, nine inches, and then weighed 143 pounds.

This is an important consideration in my assessing just how mobile andarticulate he would have been on arrest after drinking and smoking what he said he did. He was arrested at 8:40 a.m., about two and a–half hours after going to bed and photographed shortly thereafter seated in a police cruiser. There is no evidence from any police officerthat he was heavily hung over, for example, to the extent that he could not understand them or talk clearly.

His above photo does notsuggest to me that he had consumed a huge or prodigious quantity of alcohol and marihuana that he said he had ending two and a-halfhours or so earlier. No police officer said he smelled of liquor. Constable Manning booked Mr. Gough in at the Coquitlam Detachmentand took his picture at around 10:43 a.m. on September 17th, 2010. A C-13 Prisoner Report was completed by him for Mr. Gough andMr. Jesson.

Manning explained in cross-examination in reference to Jesson's C-13 which he also completed, why the police completedsuch forms as follows: A The reason why we do Prisoner Reports is not necessarily for evidentiary court purposes, it's for the health and safety of the peoplewho are in our custody. We need to know details about them in the case that something happens in the case that we need to contactsomebody for health or emergency purposes. It's not an evidential piece of paper although it is used as such. (p.31 September 5, 2012) Mr.

Gough's C-13 marked as Exhibit 9 at trial shows a photo which in my view is unremarkable. Mr. Gough does not look hung over. The Prisoner Screening portion of this form is entirely positive. All entries are nil or good including a nil entry opposite the question orbox "Breath, odour of liquor". The accuracy of this evidence was not challenged at trial. I find all these recorded observationsunchallenged as they were to be reliable and true. In my view, it would be inconceivable if Mr. Gough drank what he said he did thatsuch entries would have been made approximately five hours later.

My common sense and life experience tells me he would then havegiven off some smell of liquor. In addition, had he consumed what he said he did, I very much doubt that Constable Manning wouldhave recorded the results he did, for example, "balance good" and "consciousness good". Hence the hard objective evidence in this casedoes not support the truthfulness of Mr. Gough's story and in my view is significantly in conflict with it. [144] Generally, Mr. Gough's evidence was often very vague. He really gave no names of anyone he interacted with on September16th or 17th save Mr. Moore who was deceased on the date Mr.

Gough testified. These include the names of: (

a) the friend in whose house he drank before going to the strip club; (

b) the friends he drank with there; (

c) the friends he drank with at the strip club who bought him more than 20 drinks;

(

d) the man in the taxi; (

e) the friend he stayed with on Stewart Avenue; (

f) the friend whose place he said he was at and where he filled out his passport application. [ 145 ] There is no evidence that September 16th was any kind of special day in Mr. Gough's life. Mr. Gough said he was then unemployed and had no income. Why would the unnamed friends buy him a large quantity of free drinks at the strip club? This makes little sense. [ 146 ] Why would Mr. Gough fill out his passport application at a friend's house and not his own house?

These documents in the general scheme of things are important documents, especially if one wants to have the Canadian government eventually issue a passport to him. Why take it to a friend's place at all? Why fold it up in a standard envelope configuration and put it in your pants pocket and go out drinking, risking that it would fall out and you would lose it. On his evidence, he must have done all these things before he was drunk. [ 147 ] Why take your birth certificate recently received where you were living to a strip club?

This I find is a very important type of document, one that has to typically be applied for or at least sought out and I believe a modest fee is typically charged for same. It is the type of document one would store in a safe place at one's home as one would do with an incomplete passport application one was in the course of filling in. The birth certificate does not have a photo. How could it be used for identification anywhere? [ 148 ] That said, Mr.

Gough did not quite testify that he took it to the strip club as a form of identification because he had nothing else, for example, a driver's licence or other wallet-sized card bearing his photo. He did testify that the strip club did not require him to provide photo ID prior to his admission. Even this statement makes little sense to me. Bars cannot serve alcohol to minors because it is against the law. They must be vigilant in checking the age of their patrons. If they serve alcohol to minors, they are at risk of losing their liquor licence. [ 149 ] If Mr.

Gough's evidence is correct, it would mean a 17-year-old, for example, could get a birth certificate from a 19 or 20-year- old friend, and get into any club including a strip club with it, and drink alcohol without the club being able to know if the birth certificate related to the underage patron standing at the door. This whole scheme makes no sense. [ 150 ] He testified they did not ID him at the strip club. Why would he remember this event when he had consumed so much alcohol and agreed he had little recollection of the night in question?

Why would he recall seeing no cars at the residence when he arrived extremely drunk at about 3:00 o'clock a.m.? The devil is in the details. This evidence makes no sense. These are not the kinds of details a person who is extremely inebriated would in my opinion remember. [ 151 ] Mr. Gough said that he was so drunk when he turned in that all he could do was find the right bedroom that was unoccupied, take his clothes off, and stumble into bed.

This would suggest he did not earlier deal with the two important documents he said were in different pants pockets earlier in the evening, the passport application and birth certificate. He did not say he took them out of his pants and put them anywhere. Why would he if he was so drunk? Why would an extremely drunk person put a passport application in a desk drawer and the birth certificate somewhere else in the room? This does not make sense.

In my view, it is not what a transient person would do if sober let alone an extremely intoxicated one. [ 152 ] In my view, the fact that the passport application was found in a drawer is inconsistent with his evidence as to his state of sobriety however it is exactly what a resident would do with an important document. [ 153 ] On the same theme, if you will, I find that a resident of a place would keep his birth certificate in his residence where important documents are usually safely stored. This makes common sense. [ 154 ] Mr.

Gough testified that his birth certificate had come in the mail and went to 953 Stewart Avenue in Coquitlam, the residence he had been staying at prior to going to the residence on September 17th, 2010. [ 155 ] The sense of his evidence was that this was one of and the latest of his couch surfing addresses. Why not leave it there? It had no use to him as a form of identification in my view. [ 156 ] I do not consider his testimony that his clothing was "in my room" he guessed or the room he stayed in to be a slip of some sort.

I believe that his clothing was in his room, the room he was seen coming out of by the police, Bedroom No. 2. [ 157 ] Mr. Gough on the fingerprint form completed September 27th, 2010 gave as his address as 1190 Esperanza Drive. I repeat there is no evidence as to what this address is save I note that it appears on certain documents referred to above in Exhibit 45. Importantly, it is at odds with Mr. Gough's trial address that on September 16th, 2010 he lived at 953 Stewart Avenue in Coquitlam and that he had done so for some months. It is thus inconsistent with his sworn testimony at trial.

Hence, even on the most basic of facts, "What is your address?" based on Mr. Gough's own testimony and the documents in the case, the true answer is unclear to me. [ 158 ] He said that he had been a friend of Mr. Moore's since age 14 yet oddly had never been to his home, the residence, until September 16th, 2010. When shown the police photos in Exhibit 5 by his counsel he was not able at the outset to identify the bedroom he slept in, Bedroom No. 2 on Exhibit 7, but oddly could identify the mattress he slept on (see Photo 259). He recalled it was a fairly thick mattress.

How would someone who is extremely, extremely intoxicated and high on marihuana who had stumbled into bed and stayed there for roughly two and a-half hours recall this fact, especially where he slept in the bed for such a brief period of time? He testified he did not make it up or do anything to it so he could sleep on it. How would he recall this fact? [ 159 ] In his direct evidence, he was asked if he remembered the address he had been staying at or couch surfing before September 17th and responded it was in Coquitlam.

He did not state the street address immediately but did so later, recalling his birth certificate issued on August 27th, 2010 had been mailed there. On cross-examination he said he had stayed there for a couple of months. It seems odd he

could not recall his own street address at the outset, namely, 953 Stewart Avenue. [ 160 ] He admitted smoking a number of marihuana cigarettes (itself an unlawful activity) slightly over a gram. He said in his direct evidence he did not know where it came from. In cross-examination he testified he vaguely remembered Wes, namely, Mr. Moore, had them. Like the drinks all night, there is no evidence he bought or paid for this marihuana either. [ 161 ] He testified he assumed on the evening that he went there that the residence was a rancher as it looked like this from the outside.

This evidence followed his testimony that he did not know if it had a basement. Why ever would he make such an observation or assumption (or both) with respect to a home he said he had never been to before and at which he had arrived in a very intoxicated state late at night at about 3:00 o'clock a.m.? It does of course if accepted as the truth -- and I do not -- serve to distance him from the grow op. How could he know about a basement grow op when he assumed the home had no basement? I find this is but one example of Mr.

Gough clearly cutting his cloth to match the pattern of the Crown case. [ 162 ] On a related point, he said there was no car at the residence on his arrival. How could he possibly remember such a fact? Why would he remember such a fact? If accepted as true – and I do not – it might serve to put some time and space so to speak between his friend, Mr. Jesson, and his presence in the residence. [ 163 ] The Crown has proven in my view that Mr. Jesson's black Ford Expedition was parked out front at 8:32 a.m. on the morning in question. In order for Mr.

Gough's evidence to be correct, this car would have had to arrive after 3:00 o'clock a.m. and the driver somehow disappear or enter the residence without Mr. Gough's knowing between 3:00 to 6:00 a.m. or later. This scenario seems somewhat far-fetched and is not supported by other evidence. [ 164 ] Mr. Gough seemed a bit confused about the canine presence at the residence as to whether there was one or more than one dog. In his cross-examination, he referred to dogs.

He agreed on the morning after the police attendance he had seen Jesson put them in the bedroom he had been in and the sense of his evidence was before the officers entered. He only saw one dog at or after 3:00 o'clock a.m. on his arrival. He said he had never been to the residence and could not say the dogs he saw the next morning were Jesson's, but nonetheless was apparently able to play poker with one dog around for three hours, seemingly one of several who could not later safely be around the police who were strangers to the dogs just as he was.

This again seems very odd, namely, a need to control them before the police enter, but no such evidence of a need to control them when Mr. Gough entered earlier.

He did testify nonetheless he only vaguely remembered that he saw a dog for a second or two. [ 165 ] No one told him there was a grow op in the basement, but there was one with 719 plants in two rooms which were unlocked at about 8:40 a.m. as was the entrance down to them from the kitchen. [ 166 ] According to Corporal Uzelac, this operation would produce in one approximately 90-day cycle a crop worth as much as $201,320 if the product was sold by the gram. [ 167 ] I have found above that this was a highly sophisticated grow op which had clearly taken some considerable time, effort, and money to establish.

I frankly could have come to this conclusion without Uzelac's evidence. It was worth a lot only if not discovered. Continued secrecy of its location and size in my view are critical to its success and to there being any return on the extensive investment of time, energy and money that had clearly been put into it at the outset. Once the police discover and raid a grow op it is of course not worth $200,000 but nothing.

I accept Corporal Uzelac's evidence that one risk of carrying on such a business or venture is that of a grow rip, namely that members of the criminal element will attend without invitation and avail themselves of the fruits of the above labours by force as necessary. [ 168 ] There is very cogent evidence that the owners of the grow op in issue in the case at bar were alive to this risk by watching out for it with a surveillance system, having a reinforced front door, kitchen window, and kitchen basement door and grate, not to mention the presence of a gun, knives, axe, ammunition, and three dogs who barked when strangers arrived on their front deck. [ 169 ] When a grow rip occurs obviously somehow an unauthorized person first learns of the whereabouts of the grow op.

Secrecy of place is thereby breached. The result of a successful grow rip is arguably similar to a police raid in that the crop becomes worthless if taken. [ 170 ] I accept Corporal Uzelac's evidence as accurate and reliable and in accord with my own common sense to the effect that the capital costs alone of starting up grow operations would run into the thousands of dollars. As well, trust between and among persons involved is important.

Corporal Uzelac gave the following evidence at trial: Q Would a producer of such a marihuana grow operation let innocents simply stay over and do you understand what I mean by innocents? A Perhaps if counsel could elaborate on that. Q The people who are not involved at all and don't know anything about the grow operation, would they be allowed to simply be in that location? A Give you my opinion? No. A controller or persons involved in that production would limit access to those individuals who had knowledge and play some

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