CITATION: R. v. Doan, 2011 ONCA 626

DATE: 20111005

DOCKET: C51905, C51904, C53207

COURT OF APPEAL FOR ONTARIO

O’Connor, A.C.J.O., Watt and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thanh Doan, Van Doan and Thi Thu Vu

Appellants

Gregory Lafontaine, for the appellants

Niall Gilks, for the respondent

Heard: September 26, 2011

On appeal from the convictions entered by Justice Ronald A. Minard of the Ontario Court of Justice on September 25, 2009, and the sentence imposed on Thanh Doan on March 12, 2010.

ENDORSEMENT

[1] The appellant Thanh Doan appeals his convictions for production of marihuana, possession for the purpose of trafficking, and theft of electricity.

[2] In our view, there was ample evidence to support the convictions. The appellant Thanh Doan was present in a house where there was a substantial marihuana grow operation on three successive days for extended periods of time.

[3] The trial judge found that the predominant purpose of the residence was to grow marihuana. The house had minimal furniture. The microwave and the stove were unplugged. A surveillance camera located in an upstairs bedroom was directed toward the hydro transformer. A marihuana grow operation with 369 nearly mature marihuana plants was located in the basement. A hydro by-pass diverted electricity to the operation.

[4] The trial judge found that a substantial and complex maturing marijuana grow operation like this one would mandate frequent and regular attendance to monitor the health, integrity and security of the crop. The trial judge concluded that there was no purpose for the appellant Thanh Doan to be in the house for extended periods of time over three days other than to tend to the marihuana growing operation. In our view, that conclusion was open to him.

[5] We see no reason to interfere with these convictions.

[6] Thanh Doan also appeals his sentence of ten months in custody. We see no error. The sentence is within the appropriate range for these types of offences. This was a relatively sophisticated commercial operation. In our view, the offences do not fall within the exceptional category of cases that permit a conditional sentence.

[7] The appellants Van Doan and Thi Thu Vu also appeal their convictions for the same three offences. Van Doan is Thanh Doan’s father and Thi Thu Vu is his mother.

[8] Van Doan and Thi Thu Vu were at the house with Thanh Doan on one occasion for approximately three hours. The issue is whether there was sufficient evidence to support the trial judge’s conclusions that they were parties to or participants in the marihuana growing operation.

[9] The evidence against Van Doan and Thi Thu Vu consisted of a recording from a video camera that showed the garage and upper driveway of the house. Van Doan and Thanh Doan arrived in a van at the residence on June 2, 2007, shortly before Thi Thu Vu arrived in another vehicle. Van Doan and Thanh Doan parked in the garage and then walked out of the garage together in the direction of the front door. Thi Thu Vu parked in the driveway and walked in the direction of the front door. She was later visible on screen doing what appeared to be gardening, having changed her clothing. Approximately three hours after their arrival, Van Doan drove the van out of the garage, stopping in the driveway. He briefly re-entered the garage and returned to the van ten minutes later. Thi Thu Vu joined him, having again changed her clothing, and they left in the van. The garage door closed automatically as they were leaving. There is no other evidence implicating Van Doan or Thi Thu Vu in their son’s grow operation.

[10] It was open to the trial judge to find that Van Doan and Thi Thu Vu had been inside the house and thus had knowledge, given the strong odour of marihuana and the house’s obvious use as a grow operation.

[11] The trial judge also concluded that the appellants had control because they were working jointly in furtherance of the marihuana grow operation. In our view, however, this conclusion was not available upon the evidence. The method by which the appellants arrived and departed, as well as their access to the house in these circumstances, was insufficient to support such a finding.

[12] The respondent submits that the trial judge was entitled to rely upon the appellants’ concession at trial that they were “acting in concert” in a “joint enterprise” of external landscaping when they attended the house. We do not agree that this amounted to a concession that the appellants were working in concert for the purposes of the marihuana grow operation. Indeed, the trial judge did not rely upon such a concession.

[13] In convicting Van Doan, the trial judge placed considerable emphasis on the fact that he was at the house for a three-hour period of time. However, there was no evidence that he did not leave the house during the three-hour period. The video camera only recorded him arriving and then leaving three hours later. It did not reveal any of his actions in the interim. The Crown’s evidence about the layout of the house and the possible means of leaving the house was scanty at best. It appears that Van Doan could have left the house and returned without being detected by the video camera. Thus, he could have been at the house for a very short period of time.

[14] Moreover, there is no evidence of what Van Doan did while in the house during whatever period he was there. Nor is there any evidence that he exercised any control over the house as an owner, lessee or otherwise.

[15] In our view, the evidence against Van Doan falls short of what is required to support the three convictions.

[16] In convicting Thi Thu Vu, the trial judge drew the inference that the appellants were working in a joint enterprise and that she was gardening at a time when her husband and son were tending to the sophisticated grow operation that was the predominant purpose of the residence. As a result, he found that Thi Thu Vu aided and abetted Thanh Doan and Van Doan by working in the garden to present an air of normal residential activity, deflecting attention from the premises and the marihuana grow operation inside.

[17] In our view the evidence against Thi Thu Vu falls short of what is required to support a conviction. We do not think that a properly instructed trier of fact could conclude beyond a reasonable doubt that Thi Thu Vu engaged in the gardening for the purpose of aiding and abetting Thanh Doan with his marihuana grow operation.

[18] As a result, the appeals by the appellant Thanh Doan are dismissed. The appeals by the appellants Van Doan and Thi Thu Vu are allowed, the convictions are set aside, and acquittals are entered.

“Dennis O’Connor A.C.J.O.”

“David Watt J.A.”

“Karakatsanis J.A.”