R. v. Ma, 2019 BCPC 292

Citation: R. v. Ma 2019 BCPC 292 Date: 20191209 File No: 99539 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GUI NV MA ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. McQUILLAN Counsel for the Crown: M. Khan Counsel for the Defendant: C. Johnson Q.C. Place of Hearing: Port Coquitlam , B.C. Dates of Hearing: November 13, 14 and 18, 2019 Date of Judgment: December 9, 2019 [ 1 ] In this case, the Court is required to consider the distinction between a mistake of law and a mistake of fact. The distinction is important because a mistake of law which was made by an accused person does not give rise to a defence to a criminal charge.

Conversely, a mistake of fact by an accused person may give rise to a defence to the charge. Charges [ 2 ] Gui Nv Ma is charged with the following two counts: a. Unlawfully producing a controlled substance (marijuana) on November 15, 2017, contrary to s. 7(1) of the Controlled Drugs and Substances Act (“ CDSA ”); and b. Unlawfully possessing a controlled substance (marijuana) in an amount exceeding 3 kilograms, for the purpose of trafficking, contrary to s. 5(2) of the CDSA . Evidence [ 3 ] The evidence of the Crown consisted entirely of written Admissions of Facts pursuant to s. 655 of the Criminal Code .

Those admissions state as follows: 1. Identification is admitted and not in issue. Gui Nv Ma (“Ms. Ma”) as set out in Port Coquitlam Registry, Information No. 99539-1 is the same person who was arrested in relation to Port Coquitlam RCMP file No. 17-12999 (the “Investigation”). 2. The Investigation occurred between May 3, 2017 and November 15, 2017, in or near the City of Coquitlam, in the Province of British Columbia. 3. On November 15, 2017, Coquitlam RCMP executed a search warrant on 2236 Monashee Court, Coquitlam, B.C. (the “Residence”). 4. It is admitted that Ms.

Ma resided at the Residence with her mother, Laohua Long. It is admitted that Ms. Ma is not the registered owner of the Residence. 5. It is admitted that Ms. Ma was cultivating marijuana at the residence. 6. The continuity of all exhibits seized as part of the Investigation from Ms. Ma is admitted and not in issue. 7. The authenticity, continuity, and admissibility of all photographs and video taken as part of the Investigation is admitted and not in issue. 8. The nature and quantity of the controlled substances seized in the Investigation is admitted and not in issue, specifically: a.

It is admitted that 1357 plants weighing a total of 137 kg of vegetative marijuana (in different stages) was seized from the Residence on November 15, 2017; b. It is admitted that 3.36 kg of dried marijuana, packed evenly in 14 bags, was seized from the residence on November 15, 2017. 9. It is admitted that Ms. Ma was actively harvesting marijuana at the Residence, and was in possession of the seized marijuana on November 15, 2017. 10.

It is admitted that marijuana seized from the Residence was produced and possessed for the purpose of trafficking without the need for the prosecution to enter expert opinion evidence on the subject. 11. It is admitted that the monetary value of the seized marijuana, depending upon whether sold at the pound or gram level, ranges between $500,000 and over $1,000,000. The expert report of Sargent P.K. Murphy confirms those values. 12. It is admitted that RCMP seized from the Residence an expired “Personal - Use Production Licence Dried Marijuana for Medical Purposes” in the name of Ming Guo Lu.

The address on this licence is 2552 Parkview Street, Abbotsford, B.C. and it expired on March 31, 2014. The licence is for a maximum of 171 plants and a maximum of 7695 grams of dried marijuana. 13. It is admitted that upon her arrest, Ms. Ma advised the arresting officer that there was a licence authorizing this grow-op. [ 4 ] Following the conclusion of the Crown and Defence evidence, a further admission was consented to as follows: 14. No licence existed for Ms. Ma, or any other person to operate a marijuana grow operation at the Residence. [ 5 ] The Defence led the evidence of Ms. Ma.

She testified that she is 36 years old and was born and raised in China. She only completed school up to Grade 9 in China and then had to leave school to help in the family business when her father became ill. She immigrated to Canada in 2011 under the sponsorship of her sister. After arriving in Canada, she resided with her mother and sister until she married in January 2019, after these charges arose. [ 6 ] Upon arriving in Canada Ms. Ma obtained employment at a laundromat in Burnaby. She also worked at two janitorial companies in the evenings such that she worked the equivalent of 1.5 full time jobs.

Currently she works for a bakery in Richmond during the day and continues to do janitorial work in the evenings. [ 7 ] On Chinese New Year in February 2017, Ms. Ma was introduced to a man she refers to as Mr. Da. The introduction was made by a friend from her home town in China, Ms. Xiang Xia. Ms. Xia subsequently arranged for the three of them to have a meal together in a mall in Burnaby. While having a meal together Ms. Ma told Mr. Da that she does cleaning work. He then asked her if she would like to do some cleaning work for him at his home in Coquitlam.

He told her that he was growing marijuana in the home but that it was a

legal grow operation and that he had a licence authorizing it. He told her that he would pay her $200 cash for each day of cleaning work that she did for him. She said that she was interested and he took her phone number. [ 8 ] Mr. Da called Ms. Ma on about May 2 to ask if she could work at his home on May 4. She agreed and drove to his home at 2236 Monashee Court in Coquitlam (the “Residence”) on May 4. When she arrived, Mr. Da let her in and gave her a tour of the house. Her friend, Ms. Xia was also present in the home when she arrived. [ 9 ] Ms.

Ma described the house as being a large house with four different levels. The top floor had several bedrooms. The third floor had a kitchen and living room. The bottom two floors were entirely dedicated to growing marijuana. On the top two floors, Ms. Ma was asked to clean the washrooms, wash the floors, take out the garbage and clean the kitchen and bedrooms. On the lower two floors, she was asked to clean up the soil and leaves on the floor, place it in bags and move the bags to the upper floor. [ 10 ] When she first attended at the home on May 4, 2017, Ms. Ma said that Mr.

Da again told her that he had a licence to grow marijuana at the Residence. He then pulled out a licence from a drawer in a cabinet near the front door and showed it to her. According to Ms. Ma, that licence appeared to have Mr. Da’s name and the address of the home on it. However, Ms. Ma does not read English and it is not clear that she was actually able to discern or understand the name and address on the licence. This was the only time Ms. Ma saw what was purported to be a licence for the marijuana grow operation. [ 11 ] On May 4, Ms. Ma worked for five to six hours and was paid $200 cash by Mr. Da.

She returned to the Residence to do cleaning on subsequent days, whenever Mr. Da called her. She estimated that she worked 14 to 15 times during the three month period of May to July, and was paid $200 each time. During those attendances her work continued to be limited to cleaning. She said that while cleaning, she observed Mr. Da and her friend Ms. Xia actively tending to the marijuana plants by watering them and trimming their leaves. [ 12 ] Ms. Ma went for a visit to China from July 27 to September 11, 2017. Upon her return, Mr. Da continued to call her and have her come in and clean as she had before.

By this time she observed that her friend, Ms. Xia, was no longer working there. She said however, that Mr. Da’s wife was often present. On a few occasions in September and October, Ms. Ma brought her mother to assist her with the cleaning. [ 13 ] Sometime in September, Mr. Da told Ms. Ma that he planned to take a trip to China for three weeks in November, and asked her if she would care for the marijuana plants while he was away. She agreed to do so and he showed her what was involved, which was primarily watering, trimming the leaves and placing the trimmed leaves in bags. [ 14 ] Mr.

Da left for China near the beginning of November 2017. As the plants required watering every day, Ms. Ma moved into the Residence for the period that Mr. Da was away. Ms. Ma’s mother came with her and also temporarily moved in, as Ms. Ma was afraid of living there on her own. Mr. Da gave her a key to the home a couple of days before he left and agreed to pay Ms. Ma $200 for every day that she stayed there while he was away. [ 15 ] On November 15, 2017, the RCMP executed a search warrant for the Residence. Ms. Ma and her mother were present in the Residence at the time. Because Ms.

Ma could not speak English, the police gave her the opportunity to speak to a mandarin speaking police officer on the phone. She told that officer that the marijuana grow operation was authorized by a licence. [ 16 ] In cross-examination, Ms. Ma conceded that she was aware that growing marijuana without a licence was illegal and that marijuana was at the time a prohibited substance. She says however, that she was satisfied that this operation was legal because she had been told by both Mr. Da and her friend Ms.

Xia that it was legal, and she had seen a licence, although she could not understand what was stated on the licence, due to her inability to read English. [ 17 ] She acknowledges that she did not ask for an explanation of what was on the licence, such as whether it had expired, or how many plants were permitted to be grown. She did not give any consideration to the possibility that the licence might be other than what it was presented to be by Mr. Da. Nor did it occur to her that this could be an illegal grow operation.

Issues [ 18 ] As indicated by the Admission of Facts, most of the elements of the offences that the Crown is required to prove beyond a reasonable doubt are not in controversy, and in fact have been admitted. The various admissions lead to the conclusion that the Crown has proven the actus reus of the offences. What remains to be determined is whether the Crown has proven beyond a reasonable doubt that Ms. Ma had the requisite mens rea for the offences. [ 19 ] In this case there are three aspects to this issue: 1. Did Ms.

Ma have an honest belief that the production of marijuana at the home was legal, such that she was operating under a mistake? 2. If so, was her honest belief a mistake of fact, such that it negates the mens rea for these charges, or is it a mistake of law, which does not provide her a defence? 3. Was Ms. Ma wilfully blind, or reckless in her belief that the marijuana grow op was legal? Honest Belief that this was a Legal Marijuana Grow Operation [ 20 ] The question of whether or not Ms.

Ma honestly believed that the marijuana grow operation was legal gives rise to a consideration of her credibility. [ 21 ] Where an accused person testifies, I must analyse their testimony through the framework set out in the Supreme Court of

Canada case of R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742 where the Court stated the following at 757-758: In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. Thetrial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.

Second, if theydo not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trialjudge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [22] The Defence says that there are a number of factors that support Ms. Ma’s assertions that she thought the grow op was a legaloperation. Mr. Da told her it was legal when he met her for dinner.

He then reiterated that it was legal when he met her at the Residenceon May 4. Significantly, that was confirmed by her friend, Ms. Xia. Ms. Ma was shown a licence. The fact that the licence was expired,for a different property and for a different licence holder is explained by the fact Ms. Ma does not read English. Upon her arrest, Ms. Maimmediately told police that the grow operation was licenced. [23] The Defence also says that Ms.

Ma’s actions should be seen through the lens of an individual who is clearly unsophisticated,has a very limited education and is unable to read English. [24] The Crown says that there are reasons to doubt the testimony of Ms. Ma. In particular, there are two areas in which hercredibility should be found to be lacking. The first area is Ms. Ma’s shifting and contradictory answers to questions about whether shepaid taxes on the money she was paid by Mr. Da. At first she said that she did not, but when challenged on the potential illegality of notdeclaring that money as income she said that she did not understand.

When asked again she said that she declared $3000 on her incometax return for the income she received from May to July. [25] The second area in which the Crown says Ms. Ma’s credibility is lacking is on the issue of whether she asked Mr. Da to showher the licence when she first met him at the house. In her direct examination, she stated that she asked Mr. Da to show her the licence. However, in cross-examination she expressed with great certainty that Mr. Da showed her the licence without her asking to see it. Thisissue became the subject of re-examination of Ms.

Ma in which she said that she did not initially ask to see the licence but when he took itfrom a drawer, she then asked to see it. [26] I agree with the Crown that on these two points, Ms. Ma’s evidence was confusing and contradictory. However, little turns oneither of these two issues. I am also satisfied that there is inevitably some confusion that arises where, as in this case, the evidence is ledthrough an interpreter. I did not find that these inconsistencies in her evidence rose to the level where I found her to be dishonest. Ifound her evidence to be generally consistent and straightforward.

Under all the circumstances, I find that it was not unreasonable forMs. Ma to hold the belief that the grow op was legal. [27] I note that the reasonableness of such a mistaken belief is not a pre-requisite for it to be legally valid. However, thereasonableness of the belief is a consideration in the assessment of whether the belief is honestly held: Papajohn v The Queen (SCC), [1980] 2 SCR 120 at 155-156. [28] Upon a consideration of the totality of the evidence I find that Ms. Ma’s belief that she was working at a legal marijuana growoperation was an honestly held belief.

Mistake of Law or Mistake of Fact [29] Where a mistake is one of law rather than of fact, an accused is not relieved of liability. [30] Where a mistake is not as to the actual facts but rather as to their legal effect, the mistake will be a mistake of law. This isconnected to the principle that ignorance of the law is not a defence. That concept is codified in

section 19 of the Criminal Code whichstates: 19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. [31] While a mistake of fact is frequently characterized as a defence, in fact where it exists it is more properly characterized as anegation of the requisite mens rea. As stated in Papajohn at 148: Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with whichhe is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence.

Itavails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of anoffence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. [32] Where a mistake is one of mixed law and fact, the mistake should be treated as one of fact: R. v. Davidson (1971) (BC CA), 3 C.C.C. (2d) 509 at 515-516.

[33] The Defence places significant reliance on the case of R. v. Chen 2018 BCSC 1996. In that case, the accused had attended at aresidence, which housed a marijuana grow operation, on five occasions over a period of several months. He had been hired by a Mr. Suto perform certain electrical and carpentry work on the property. There were two valid licences to grow marijuana for the property, butthose licences only allowed 122 plants. Mr. Chen was not the registered owner of the property, nor was he the licence holder.

On thedate that a search warrant was executed on the property, 1422 marijuana plants were present. [34] Mr. Chen was present at the property when the search warrant was executed. He testified that he was there solely for thepurpose of repairing some damage to the roof and other structures caused by a storm. He also testified that he at no time had anything todo with tending the plants or disposing of the final product. [35] Mr. Chen testified that upon originally being retained by Mr. Su, he was advised that the marijuana was being produced at theproperty legally. Mr. Su showed him a licence to confirm that fact.

However, Mr. Chen’s English was very poor and he did not reviewthe documents in any detail. [36] As in the present case Mr. Chen did not dispute that the work he did at the property resulted in him committing the actus reusof the offences for which he was charged. [37] In Chen, Mr. Justice Branch concluded that Mr. Chen did have an honest belief that the property contained a legal growoperation, notwithstanding some deficiencies in his testimony. [38] The Court then went on to consider whether Mr. Chen’s honestly held but mistaken belief was a mistake of law or a mistake offact.

In assessing that issue, the Court referred to the case of R. v. Starosielski 2001 ABPC 208 at para 134 as setting out a helpfulapproach to the issue: [134] In order to prove a defence of reasonable mistake of fact the following elements are required: 1. There is a set of facts upon which the defendant acted. 2. These facts reach to the external elements of the offence. 3. The manner in which the defendant formulated and accepted this set of facts was reasonable. 4. The defendant acted reasonably based upon these facts. 5. The assumed facts cannot be the result of merely an

interpretation of law. 6. The defendant cannot have been seen to be wilfully blind to the law. [39] The Court concluded that Mr. Chen was simply an independent contractor brought on site to perform limited services on limiteddays. He was told by the person controlling the property that the operation was licenced and he was shown a licence. In doing so, hesimply sought out enough factual information to comfort him so that he could fulfil his limited engagement.

The Court concluded that,absent other evidence which would put him on alert such as to undermine his honest belief, an independent contractor should be able torely on basic facts presented to him when he is asked to perform limited work, and should not be required to make detailed legalinquiries. [40] The Court further concluded that in such cases, criminal responsibility may turn on the proximity of the legal relationshipbetween the licence holder and the accused.

At paragraph 58: [58] The further one extends from the actual party on a licence, who is more clearly responsible for knowing and appreciating itslegal terms, and the employees of such an operation, who necessarily have a greater interest in the legality of the operations of theiremployer, the more likely a mistake as to the existence of a valid licence is properly characterized as one of fact rather than law. [41] Indeed, the actual licensee may not be able to avail himself of the defence of mistake of fact. As stated in R. v. Vu 2018 ONCA436 at paragraph 67: [67] However, a person such as Mr.

Johnson’s friend would be in a different position if he was mistaken as to the location where hewas authorized to produce marijuana. Applying Nur and MacDonald, a mistake of fact defence would not be available to Mr. Johnson’sfriend, the actual licensee, even if he was honestly mistaken as to the terms or status of his license and, as a result of the mistake,produced at an unauthorized location.

Both Nur and MacDonald make it clear that a mistake as to the terms of one’s license is a mistakeof law, not a mistake of fact. [Emphasis added] [42] The Court in Chen also considered the two following cases from the Ontario Court of Appeal. Firstly, at paragraph 59: [59] In R. v. Darquea (1979), (ON CA), 47 C.C.C. (2d) 567 at 569 (Ont.

C.A.), the Ontario Court of Appeal statedthe following in overturning a trafficking conviction of certain employees on consent of the Crown: We are all of the view that a genuine belief on the part of the appellants that the laboratory by which they were employed was authorizedto manufacture the controlled drug, which is the subject of the charge, constitutes a defence. In the case of true crimes a genuine belief incircumstances, which, if true, would make the act with which the accused is charged an innocent act is a good defence.

The learned trialjudge appeared to be of the view that the belief relied upon by the appellants was a belief as to a matter of law, and not a belief as to amatter of fact, and hence was not a defence. We are all of the view that a genuine belief that the laboratory was licensed under the Actand the Regulations to manufacture the controlled drug is a belief as to a matter of fact, and constitutes a defence to the charge.

[Emphasis added.] [43] Secondly, in R. v. Johnson 2016 ONCA 654, the Ontario Court of Appeal overturned a conviction for unlawfully producingmarijuana and possessing marijuana for the purpose of trafficking. The accused was found at a residence being used as a marijuana growoperation, where he had been waiting to meet a water truck to water the marijuana plants. Upon arrest, he immediately told the policethat his boss had a licence to produce marijuana at that residence. In fact, although his boss had a licence for another nearby location, hedid not have a licence to grow marijuana at that location.

In overturning the conviction, the Court of Appeal said at paragraph 5: [5] We are satisfied that the trial judge erred in law in holding that the defence had an onus to establish the honest belief defence. The trial judge found that the defence could not be made out by the appellant unless he had seen a licence. In our view, the trial judgewas wrong to place any onus on the appellant and she was wrong to hold that the defence could only be made out by evidence that theappellant had seen a licence. The Crown was required to prove beyond a reasonable doubt that the appellant knew his boss did not havea licence.

This was an essential finding before the appellant could be found liable as an aider and abetter. The trial judge was obliged toconsider the appellant’s statement to the police just as he was obliged to consider the other evidence, including the evidence that his bosshad a licence to grow at another residence and had applied for a licence at the Thirty Road North residence. [Emphasis added] [44] In Chen, the Court adopted the above comments and acquitted Mr. Chen on the basis that he had an honestly held belief as tothe legality of the operation.

Further, his error should be properly characterized as a mistake of fact, or mixed law and fact, given hisnarrow role in respect of the site operations, and his minimal level of contact with the licencing regime. [45] In the present case, the Crown seeks to distinguish Chen for the following reasons: 1. There was a valid licence for the property in Chen, although the number of marijuana plants exceeded the licence. 2. In Chen, the Court made an express finding that Mr. Chen was an independent contractor rather than an employee. 3. Mr.

Chen was not active in the actual cultivation of the marijuana plants. [46] Furthermore, the Crown says that the facts of this case align more closely with the Ontario case of R. v. Zheng 2015 ONCJ 30. In that case, the accused was a security guard employed at a licenced marijuana growing facility. When he heard burglars breaking intothe facility he called 911. Upon arriving and arresting the burglars, the police then arrested the accused on the basis that he was notnamed on the licence, and there were more plants being produced than allowed for on the licence.

The Court concluded that theaccused’s incorrect belief that he could stand in the place of the licensee was an error of

interpretation and was therefore a mistake oflaw. Accordingly he was convicted of production of marijuana and possession for the purpose of trafficking. [47] In Chen, the British Columbia Supreme Court considered Zheng and concluded that its reasoning had not been adopted inBritish Columbia. It also concluded that Zheng was distinguishable. At paragraph 54, [54] ……………The discussion of mistake of law or fact in Zheng was primarily focused on a different issue – that being whether theaccused employee was mistaken in his belief that he was entitled to work under the scope of the employer's licence.

This debate wasmore relevant in Zheng, where the security guard was recognized as an employee of the licensee and had admittedly undertaken somework on the marihuana plants themselves: Zheng at para. 32. As a result, his ability to come within the scope of the protection granted tohis employer was front and centre. [55] Here, I conclude that Mr. Chen was simply an independent contractor brought on site to perform limited services on limited days.His defence was not that he could stand in the shoes of the licensee. Obviously he could not.

Rather, the relevant facts here were that hewas told as a fact by the person controlling and operating the site that the operation was licensed, and he was shown a licence. He did notseek to stand in the shoes of the licensee. He simply sought enough factual information to comfort him so that he could fulfil his limitedengagement. [48] The Crown is correct that the present case has features that distinguish it from Chen. When Ms. Ma accepted the retainer tomove into the home and care for the plants while Mr. Da was away in November, her role became closer to that of an employee than anindependent contractor.

Although it is difficult to characterize her as an employee given the short term nature of her anticipatedinvolvement, it was certainly more involved than that of Mr. Chen. Furthermore, unlike Mr. Chen, at the time of Ms. Ma’s arrest shehad clearly become actively involved in the cultivation of the marijuana plants.

I am not however, persuaded that the existence of a validlicence in Chen, as contrasted with the expired licence for a different property in the present case, is a significant distinction. [49] Despite these distinguishing characteristics, I find the reasoning in Chen to be more consistent with the other cases to which Ihave referred above. Moreover, as Chen is a decision of the British Columbia Supreme Court, its reasoning is binding on this Court. Ido not find the factual differences in this case to be of such a nature as to lead to a different conclusion than was reached in that case. Assuch, I find that Ms.

Ma’s error may be properly characterized as a mistake of fact, or mixed fact and law, and as such she lacked themens rea necessary to be convicted on these charges. Recklessness or Wilful Blindness [50] Despite my finding that Ms.

Ma lacked the requisite mens rea for these charges due to honest but mistaken belief, the Crownsays that she may still be found guilty if she was reckless or wilfully blind in arriving at her belief. [51] Recklessness is found in the attitude of one who, aware that there is danger that his conduct could bring about the resultprohibited by the criminal law, nevertheless persists, despite the risk. However, a finding of recklessness underlying a mistaken belief ina set of facts, does not override the defence of mistake of fact, since the honestly held belief need not be reasonable: R. v.

Sansregret (SCC), [1985] 1 S.C.R. 570 at para 21. Nonetheless, a finding of wilful blindness as to the very facts about which the

honest belief is asserted will undermine the defence of mistake of fact because, where wilful blindness is shown, the law presumes knowledge on the part of the accused. [ 52 ] The distinction between the two was further expressed in Sansregret at paragraph 22 : 22.

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [ 53 ] Accordingly, a finding of recklessness on the part of Ms. Ma in arriving at her honest belief about the legality of the marijuana grow operation will not preclude a finding of mistake of fact, unless that finding leads to the conclusion that she did not have such an honestly held belief.

However, a finding that she was wilfully blind would preclude the existence of a mistake of fact. [ 54 ] The Crown says that Ms. Ma was aware that people could be prosecuted for growing marijuana and as such she was clearly alive to that risk. Ms. Ma asked to see the licence, which supports the inference that she was aware that having a licence was important. Despite that, she failed to make further inquiries of the licence. [ 55 ] The Defence says that Ms.

Ma was not asked any questions in cross-examination about what further inquiries she could have made and why she did or did not make them, which should weaken the Crown’s argument regarding wilful blindness. [ 56 ] In my view, this issue was raised by the Crown in the cross-examination of Ms. Ma when she was asked about whether she had made inquiries regarding the expiration date of the licence and the number of plants that were permitted under the licence. Ms. Ma agreed that she did not ask any such questions.

However, I am unable to find that her failure to ask such questions or make further inquiries in the circumstances of this case rise to the level of wilful blindness. To paraphrase Chen at paragraph 55 , she simply sought out enough factual information to comfort her so that she could fulfil her limited engagement. [ 57 ] Ms. Ma was an unsophisticated, relatively new immigrant who spoke and read no English. She was assured by a friend that this was a legal operation and those assurances were corroborated by the assurances of Mr. Da and the presentation to her of what she understood to be a valid licence.

For the reasons described above, I have found that her mistake as to the legality was one which was honestly held. In my view, there was nothing in the evidence which would lead to a conclusion that she deliberately failed to inquire when she knew that there was reason to inquire, or that she was aware of the need for some inquiry but declined to make it because she did not wish to know the truth, as described in Sansregret . [ 58 ] Accordingly, on the basis of the foregoing I find Ms. Ma not guilty of the two counts for which she has been charged. ______________________________ The Honourable Judge R.P.

McQuillan Provincial Court of British Columbia