COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2016 ONCA 182

DATE: 20160303

DOCKET: C56689/C57666

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant (Respondent)

and

Tan Tien Nguyen

Respondent (Appellant)

Kathleen Healey and Ruth McGuirl, for Her Majesty the Queen

J. Randall Barrs Q.C. and Patrick Ducharme, for Tan Tien Nguyen

Heard: November 19, 2015

On appeal from the acquittal and from the convictions entered on February 1, 2013, with reasons reported at 2013 ONSC 605, and the sentence imposed on September 26, 2013, with reasons reported at 2013 ONSC 6913, by Justice Leonard Ricchetti of the Superior Court of Justice, sitting without a jury.

Pardu J.A.:

A. Introduction

[1] The appellant, Tan Tien Nguyen, was found guilty after trial of conspiracy to commit the offences of possession of marihuana for the purpose of trafficking and production of marihuana, and the substantive offences of possession of marihuana for the purpose of trafficking and production of marihuana. The appellant was acquitted of the charge of money laundering.

[2] He was sentenced to 20 months’ concurrent incarceration on the conspiracy counts. The convictions on the substantive charges were stayed on the basis of Kienapple v. The Queen, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was also subjected to a forfeiture inquiry, ordered to pay a fine of $2,809,211.40 in lieu of forfeiture of certain property[^1], and ordered to forfeit a number of items, including his family and business properties.

[3] The appellant appeals his convictions, forfeitures and the fine in lieu of forfeiture on the basis that the verdicts are unreasonable and unsupported by the evidence and that the trial judge erred in law in coming to the guilty verdicts.

[4] The Crown appeals the acquittal on the money laundering count.

[5] For the reasons set out below, I would allow the appellant’s appeal, quash the convictions on the two conspiracy counts, lift the stay of the two substantive counts, and impose the sentence and related orders imposed by the trial judge, that is 20 months’ incarceration concurrent on each of the counts of production of marihuana and possession for the purpose of trafficking in marihuana. I would dismiss the Crown appeal.

B. Facts

[6] The appellant was the proprietor of a garden supply business, All Seasons Garden Supply (“ASGS”). Within the four-month timeframe specified in the indictment, the appellant had one employee, Son Van Nguyen (“Son”), his brother-in-law. Son was involved in dealing with customers, physical labour, loading and unloading of vehicles, disposing of waste into the dumpster, and using ASGS’s vehicles for business purposes.

[7] The appellant had numerous properties and vehicles associated with him, including 1000 Dundas Street East in Mississauga where he operated ASGS. The products the appellant sold included fertilizer, pesticides, pots, lights, and devices to remove ambient odours. Some products, though, were more atypical of a garden supply store, including timers, ballasts, electromagnetic switches and electrical circuit panels. None of the products sold was illegal to possess.

[8] The business operated in a manner such that there were no records identifying customers’ names and addresses, or what products they bought, or linking ASGS to any particular items sold. Customers were allowed to use the ASGS delivery van, a 2002 white Dodge Caravan (the “Caravan”), to take home purchases without a record of who had the van, where they were going, or when they would be coming back. Customers paid cash. Delivery was often effected in a way that concealed what supplies were being transferred. Customers would back up their vehicles to the door of the store and purchases that were hidden in opaque garbage bags were then loaded into their vehicles.

[9] Unidentified customers left with the products and went elsewhere. Customers came from southern Ontario, Montreal and England. There was no evidence of any link between the customers themselves. Except for four instances where customers were followed to locations later discovered to harbour grow operations, there was no evidence about what the customers actually did with whatever products they purchased.

[10] Beginning in June 2009, police commenced surveillance on the appellant and his business. During surveillance, police followed ASGS customers and deliveries made using the Caravan. The appellant was eventually arrested and charged with the offences noted on the basis of the police investigation of the appellant’s business practices and, in particular, the discovery of four marihuana grow operations linked to four ASGS customers.

C. THE Trial judge’s reasons

[11] The appellant’s position at trial was that the Crown had not established beyond a reasonable doubt that he conspired with others and that he knew or intended that his products and services would be used in marihuana grow operations for the production of marihuana or possession of marihuana for the purpose of trafficking, and further, that it is not an offence to sell products that are legally for sale in Canada.

[12] Although the indictment charged the appellant as a principal, the Crown’s theory at trial was that the appellant aided and/or abetted the commission of the offences by providing one-stop shopping for marihuana producers.

[13] It is unnecessary to review the trial judge’s findings of fact exhaustively here, but in short, he found the appellant was not credible or reliable and rejected his evidence that he did not know or intend that his products would be used for marihuana production. The trial judge largely accepted the evidence of the Crown witnesses – police officers detailing the investigation into the appellant, and Constable Smith, who gave expert evidence that the appellant sold products suitable for use in marihuana grow operations.

[14] The trial judge defined the issues at paras. 274-75 of his reasons:

The Crown must prove the following beyond a reasonable doubt:

a) On the conspiracy to aid and abet counts, that Mr. Nguyen:

• intended to enter into an agreement with others to aid and abet marihuana grow operators’ production and possession of marihuana for the purpose of trafficking by supplying them with a one stop shop for purchasing marihuana grow operation products, in a clandestine, no-names basis, no-questions asked basis, to provide delivery assistance where needed without the need to disclose the identity of the customer or the location of the marihuana grow operation and to provide waste disposal assistance from the customer’s marihuana grow operations (“the Products and Services”);

• did enter into the above agreement; and

• intended to put the above agreement into effect.

b) On the aiding and abetting counts, Mr. Nguyen:

• Knew he was helping or facilitating marihuana grow operators in … their marihuana grow operations by supplying Products and Services;

• intended to help or facilitate marihuana grow operators in their marihuana grow operations by supplying them with the Products and Services; and

• did help or facilitate the marihuana grow operations by providing the Products and Services.

The above can be broken down into the following questions:

(i) Did Mr. Nguyen know he was supplying the Products and Services to persons for marihuana grow operations?

(ii) Did Mr. Nguyen intend to supply the Products and Services to persons for marihuana grow operations?

(iii) Did Mr. Nguyen enter into an agreement with Son Van and others to supply the Products and Services to persons for marihuana grow operations?

(iv) Did Mr. Nguyen carry out the agreement to supply the Products and Services to persons for marihuana grow operations?

(v) Did Mr. Nguyen know the supply of Products and Services to marihuana grow operators would help or assist the marihuana grow operations?

(vi) Did Mr. Nguyen’s supply of Products and Services help or facilitate the marihuana grow operations? [Emphasis in original.]

[15] He concluded that the appellant knew he was supplying, and intended to supply, products to marihuana grow operators, that the appellant and Son were party to an agreement to provide products for marihuana grow operations, and finally, that customers attending at the store were parties to the same agreement. This formed the basis for the finding of guilt on the conspiracy charges.

[16] He also found that the operation of the appellant’s business, in general, helped or facilitated marihuana grow operations in several ways:

• It helped avoid detection by the police;
• It helped marihuana grow operators purchase products with the minimum number of persons knowing of their location or operations – the benefit of the one-stop shop;
• The products were directly used in the marihuana grow operations to grow marihuana;
• It helped the marihuana grow operators dispose of their marihuana grow operation waste; and
• It helped marihuana grow operators with ready-made products such as the timer boards and the purchase of used products needed for marihuana grow operations.

[17] He also found that the appellant knew, in general, that his business activities would assist in the production of marihuana and possession of marihuana for the purpose of trafficking. These findings formed the basis for the appellant’s convictions on the substantive offences.

[18] The trial judge acquitted the appellant of money laundering on the ground that it would be speculation to find that the purchase monies for certain properties came from the production of marihuana. He concluded that it was highly possible that substantial amounts or all of the monies came from the garden supply business, and not from the production of marihuana.

D. the CONVICTIONS appeal

(1) Aiding and Abetting a Conspiracy

[19] Because the charge of conspiracy proceeded on the basis that the appellant aided and abetted principals in the commission of an offence, it comes squarely within the scope of the Supreme Court of Canada’s decision in R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, released after the trial judge’s decision in this case. The trial judge characterized the issue as whether the Crown had proven the appellant intended to and did enter into an agreement with others to aid and abet “marihuana grow operators’ production and possession of marihuana for the purpose of trafficking by supplying them with a one stop shop for purchasing marihuana grow operation products”: para. 274(a). This characterization brings the basis for conviction into conflict with the decision in J.F., which holds that aiding a conspiracy to achieve its unlawful object(s) does not, on its own, make someone a party to the conspiracy.

[20] In J.F., the court had to choose between two conflicting lines of authority dealing with the elements of being a party to a conspiracy. The court approved of the narrower view of party liability for conspiracy expressed in R. v. Trieu, 2008 ABCA 143, 429 A.R. 200, aff’g R. v. Lam, 2005 ABQB 849, that party liability to conspiracy is established only if someone encouraged or assisted the initial formation of the agreement, or encouraged or assisted new members to join a pre-existing agreement. The court also referred, at para. 51, to R. v. Alexander (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), paras. 46-47, with approval:

The appellants’ submissions stand on firm legal footing. The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal.

It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy: see R. v. Lamontagne (1999), 1999 13463 (QC CA), 142 C.C.C. (3d) 561 (Que. C.A.), at 575-76; R. v. Cotroni, supra, at pp. 17-8. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred. [Emphasis omitted.]

[21] In an article entitled “Conspiracies and Attempts” in the National Criminal Law Program, Substantive Criminal Law (1990), vol. 1, Doherty J.A. (then of the Supreme Court of Ontario) traced the roots of the requirement of a mutual object in a criminal conspiracy. He began, at p. 24, with a quotation from R. v. Cotroni (1979), 1979 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C.), at pp. 17-18:

The important inquiry is not as to the acts done in pursuance of the agreement but whether there was a common agreement to which the acts are referable and to which all of the alleged offenders were privy.

There must be evidence beyond a reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.

[22] He demonstrated how the “mutuality of object” doctrine set out in Cotroni had been applied in more commonplace situations, at pp. 24-26:

In subsequent cases, the “mutuality of object” doctrine set out in Cotroni has been applied to two more commonplace fact situations. The first involves so-called bilateral crimes, such as trafficking, where the Crown has argued that an agreement by “B” to sell to “C” renders “B” and “C” co-conspirators. The second involves those cases where the Crown alleges a general conspiracy of wide proportions, and the accused maintains he was involved in a much more restricted criminal agreement to commit the same crime.

In the first situation, Cotroni is taken as requiring some mutual purpose beyond “B’s” intention to sell and “C’s” intention to buy. In the second situation, the “mutuality of object” approach requires that each accused be privy to and agree to the larger scheme, although not necessarily to all of the details.

R. v. Kelly offers an example of the application of the “mutuality of object” definition to a bilateral agreement to buy and sell. “S” offered to sell a narcotic to “K”, knowing that “K” intended to resell the drugs. The conduct of “S” constituted trafficking; “K” intended to engage in an act of trafficking as well. The overall course of conduct contemplated by “S” and “K” involved two separate, albeit inter-dependent, acts of trafficking. There was not a single object. They had not agreed to pursue a common object, but rather each had their own object. After a detailed review of the authorities, the Court of Appeal acquitted Kelly on an application of the “mutuality of object” approach to the crime. [Footnote omitted.]

[23] Doherty J.A. went on to cite, at pp. 27-28, R. v. Longworth (1982), 1982 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.), for the proposition that proof that a person was a party to a conspiracy required proof not only of knowledge of the wider scheme, but adherence to the object of the wider scheme:

In R. v. Longworth et al., the Crown charged a conspiracy, extending over three years, to traffic in a narcotic. “N”, one of the accused, was involved in a single purchase from “W”, the alleged distributor. The amount of the purchase suggested “N” intended to resell at least part of the amount he purchased. There was no other evidence of “N’s” involvement in “W’s” “network” although it could be inferred that he knew his purchase was not “W’s” only sale. The Court’s attempt to rationalize conflicting authorities produces some confusion between the concepts of agreement and common design. In the end, however, the Court clearly requires proof of a joint determination to pursue the overall distribution scheme. The Court held that “N” was not a party to the wide agreement alleged and could not be convicted on the basis of his proved involvement in a conspiracy to commit the same crime but on a much more limited scale. [Footnotes omitted.]

[24] The court in J.F. likewise highlighted the distinction between being a party to the initial agreement to commit an offence and taking steps to further the criminal object, citing with approval, at para. 46, the following passage from “Developments in the Law: Criminal Conspiracy” (1959), 72 Harv. L. Rev. 920, at pp. 934-35:

But to aid and abet a crime it is necessary not merely to help the criminal, but to help him in the commission of the particular criminal offense. A person does not aid and abet a conspiracy by helping the “conspiracy” to commit a substantive offense, for the crime of conspiracy is separate from the offense which is its object. It is necessary to help the “conspiracy” in the commission of the crime of conspiracy, that is, in the commission of the act of agreement. Only then is it justifiable to dispense with the necessity of proving commission of the act of agreement by the defendant himself. In all other cases, to convict the defendant of conspiracy it is necessary to prove not only knowledge on his part that he was helping in a wrongful enterprise, but also knowledge on another’s part that he intended to do so, and at least a tacit agreement to give and accept such help. [Emphasis added; footnotes omitted.]

[25] That is not to say that steps taken in furtherance of the criminal object are irrelevant to the question of the existence of a common agreement. It is well understood that evidence of the existence of an agreement is often not express or direct, but rather must be inferred from individual events, relationships and circumstances that in “their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement”: Paradis v. The King, 1933 75 (SCC), [1934] S.C.R. 165, at p. 168.

[26] Therefore, acts done in furtherance of an unlawful act can present powerful circumstantial evidence in support of a finding that an agreement exists: see R. v. Blake (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 526. Those acts on their own, however, do not make an accused a party to the offence of conspiracy.

(2) Does the Evidence Establish the Existence of a Conspiracy?

[27] It is apparent, in my view, that the trial judge based his finding of the existence of a conspiracy on the fact that the appellant’s products and services had the effect of aiding and abetting unspecified marihuana grow operators with their operations, by providing one-stop shopping for products and services on an anonymous basis. In other words, the appellant’s actions furthered the objective of marihuana grow operators in general. The trial judge appears to have applied the broader view of party liability for conspiracy which has now been rejected by the Supreme Court of Canada. This was an error.

[28] As the Crown fairly points out, however, if the circumstantial evidence is such that, even applying the narrower view of party liability endorsed in J.F., the existence of an agreement is established, then the trial judge’s error might not constitute a reversible error. That is, if, on the evidence, a conspiracy is established, then the trial judge’s error will be immaterial to the result. The question is therefore whether the evidence gives rise to an inference of the existence of a common agreement, or a mutual criminal objective, between the appellant, Son and the marihuana grow operators to produce marihuana or possess marihuana for the purpose of trafficking, as the indictment specifies. In my view, it does not.

[29] There was no evidence to establish when, where, and on what terms an agreement to produce marihuana or possess marihuana for the purpose of trafficking existed and no evidence that the appellant shared in the proceeds from cultivation of marihuana by store customers. Here, unknown purchasers, unrelated to each other, purchased unknown legal products from the appellant and did something with them somewhere, likely ultimately connected with a marihuana grow operation. They also sometimes made use of his company van and disposed of items in his dumpster, although it was often Son, and not the appellant, who was directly involved in providing these services.

[30] The trial judge made a finding that the appellant knew his products were being used by marihuana grow operators in their production of marihuana, a finding which was certainly open to him on the evidence. However, in my view, it cannot be enough that the appellant sold legal items that he knew could be used for illegal purposes – and likely were being so used – to infer the existence of a common agreement.

[31] Other jurisdictions have struggled with the issue of whether the sale of goods otherwise lawful to possess makes the vendor guilty as a party to conspiracy when he knows the purchaser will use the goods for some illicit purpose. These cases have to be approached with caution because of different statutory regimes, but they illustrate a discomfort with extending the reach of conspiracy so far.

[32] One interesting example is U.S. v. Falcone, 109 F. 2d 579 (2nd Cir. 1940). In that case, distributors sold sugar, yeast and cans used in illegal distilleries, knowing of the illegality of the purpose to which the products would be put. The Second Circuit Court of Appeals concluded that the seller of goods does not become a conspirator or an abettor merely because he sells goods, which are in themselves innocent, even if he knows that the buyer intends to use the goods to commit a crime. Rather, the seller must make the venture his own before he will be guilty as a conspirator or abettor.

[33] Learned Hand J. said for the court, at p. 581:

It is not enough that he does not forego a normally lawful activity, of the fruits of which he knows that others will make an unlawful use; he must in some sense promote their venture himself, make it his own, have a stake in its outcome. The distinction is especially important today when so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided. We may agree that morally the defendants at bar should have refused to sell to illicit distillers; but, both morally and legally, to do so was toto coelo different from joining with them in running the stills.

[34] The decision was affirmed on certiorari to the United States Supreme Court, which held that the sale of the goods did not make the vendors part of the conspiracy to distill liquor, even though the sale may have furthered the object of the conspiracy to which the distiller was a party, and even though the vendor knew the goods would be used for that purpose.

[35] Another example is R. v. Kenning, [2008] EWCA Crim 1534. The accused were charged with conspiracy to aid and abet production of marihuana and conspiracy to counsel production of marihuana. Two of the accused owned a business selling hydroponic equipment, cannabis seeds, and cannabis-related literature. They had posted a notice in the store informing customers that it was illegal to cultivate cannabis. However, equipment from the appellants’ store was found on premises where cannabis was being produced. Undercover police officers went to the store on two occasions and expressed an interest in growing plants. The appellants advised the officers that they could provide the necessary supplies, as well as anti-detection measures. On this evidence, the appellants were charged. The court described the basis for the charges as follows, at para. 11:

These facts, which were adduced in evidence before the jury, posed a problem for the prosecution. The items purchased from The Hydroponic Centre that had been used by the purchasers to grow cannabis might equally have been used to grow plants that could be grown lawfully. There was thus no basis upon which the appellants could have been charged with aiding and abetting the production of cannabis simply because [they] had sold the items in question. So far as the undercover police were concerned, the evidence demonstrated that the appellants were prepared to aid and abet them to commit the offence of growing cannabis, but this did not of itself amount to any offence. The prosecution decided that the answer to their problem was to bring charges in the form of [conspiracy to aid and abet the production of marihuana and conspiracy to counsel the production of marihuana].

[36] The court concluded, however, that an agreement to aid and abet an offence was not in law capable of constituting a criminal conspiracy.

[37] Similarly, in R. v. Dang, [2014] EWCA Crim 348, the court noted in relation to hydroponic equipment suppliers, at para. 19:

No question arises as to whether the defendant aids and abets the production of cannabis. Before they could convict of conspiracy to be concerned in the production of cannabis by another, the jury had to be sure that the defendant whose case they were considering joined a conspiracy knowing that its objective was to provide equipment for the production of cannabis by another and that when he joined it the defendant shared that intention. As the trial judge put it: “There has in each defendant's case to be a specific intention that the production of cannabis by another should and would take place.” A generalised awareness that the equipment may be used for the unlawful purpose would not suffice.

[38] Ultimately, convictions in Dang were sustained on the ground that the conspiracy related to the statutory offence of “being concerned in the production of cannabis by others.”

[39] In R. v. Jones, [2010] EWCA Crim 925, the appellant was charged with incitement to produce marihuana. He ran a shop which sold smoking paraphernalia and hydroponics equipment which could be used to produce marihuana. In addressing whether the words or actions of the accused amounted to a positive step toward inciting another to commit a crime, the court noted, at para. 19:

It [is] common ground that the offering of goods for sale which can be used for an illegal purpose is not enough. Thus, shops such as Grow Republic, are not breaking the law simply by doing so, in the same way that a gardening centre would not be breaking the law by selling hydroponic equipment which could be used either for the production of herbs or for cannabis. What is important is the existence of specific evidence of incitement to commit the offence: although the make up of the shop provides the context, the language used by the appellant is also critical.

[40] The court went on to find that the words of the appellant, put in the context of the business he ran, amounted to the appellant teaching others how to cultivate marihuana. While the offence at issue in Jones was not conspiracy, the court’s comments to the effect that it is not a crime to sell legal goods, even knowing that they may ultimately be used for an illegal purpose, are nevertheless instructive.

[41] Indeed, the case of Trieu, cited approvingly by the Supreme Court in J.F., involved a scenario of the sale of legal goods to those who would use those goods for illegal ends. Trieu’s business was selling cellular phones. He sold phones to five people whom he knew to be engaged in drug trafficking as a group and who he knew would use the phones in their trafficking operation. The trial judge acquitted Trieu and the Alberta Court of Appeal upheld the acquittal.

[42] The facts of Trieu are indistinguishable from the present case. The Crown could not point to any factor in this case suggesting that it should be treated differently. On this kind of evidence, the appellant could not be found guilty as a party to the conspiracy, even if he knew that his products would help marihuana grow operators.

[43] In my view, the general fact that the appellant operated a garden supply store, even knowing that nearly all of his customers wanted the products for marihuana grow operations, is not sufficient in itself to make him a party to a conspiracy to produce marihuana or possess marihuana for the purpose of trafficking for the following reasons:

• There is no evidence of an overarching agreement to produce marihuana or possess marihuana for the purpose of trafficking to which Son and ASGS’s customers were parties. There is no evidence of a mutuality of purpose amongst the appellant, Son, and the unknown purchasers, and no common enterprise of production of marihuana or possession of marihuana for the purpose of trafficking, the conspiracy charged.
• There is, in general, no evidence of what ASGS’s purchasers ultimately did with whatever they purchased.
• In the event that any of the purchasers did use the products in a marihuana grow operation, there is no evidence that the appellant had any stake in those grow operations.
• The transactions to which the appellant might have been a party through his business were separate agreements of purchase and sale of legal products.
• Whatever use the purchasers made of the unknown garden supply products, it was too remote from the appellant’s business’s sales to them.
• The conspiracy charged was an agreement to produce marihuana or possess it for the purpose of trafficking. This is different from the conspiracy found, an agreement to aid and abet marihuana grow operators.

[44] This is not a case of a hierarchical multi-level organisation devoted to the sale of drugs in which many different individuals played different roles, but all subscribed to a common goal. In short, there was no mutuality of objective. The appellant’s goal in all this was, it appears, to sell more of his products and offer services and conditions to keep customers coming back. Indeed, the trial judge found as much, at para. 307 of his reasons:

I am satisfied beyond a reasonable doubt that Mr. Nguyen’s knowledge and intention that the sale of the Products and Services, would help or facilitate persons in their marihuana grow operations in the production and possession of marihuana for the purpose of trafficking. Mr. Nguyen did so for the obvious and clear motivation, making profit on the sale of his products.

[45] For these reasons, I would overturn the trial judge’s decision on the two conspiracy counts and enter acquittals.

(3) Aiding and Abetting the Substantive Offences

[46] The appellant was convicted of the substantive offences of production of marihuana and possession of marihuana for the purpose of trafficking on the basis that, through his garden supply business, he aided and abetted marihuana grow operations. After concluding that Mr. Nguyen knew and intended that the sale of his products and services would help or facilitate marihuana grow operators in the production of marihuana and possession of marihuana for the purpose of trafficking, the trial judge held, at para. 308:

Mr. Nguyen’s actions actually resulted in assisting and facilitating the production of large quantities of marihuana. That is the purpose of the products he sold – to help in the production of large quantities of marihuana. The successful result of Mr. Nguyen’s assistance to these marihuana grow operators can be seen from the four locations of ASGS customers where the police discovered large marihuana grow operations.

[47] Under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46, every person is a party to an offence who:

(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

[48] As is evident from the section, before someone can be convicted for an offence as a party, the underlying offence must have been committed.[^2] This point was underscored in J.F., at para. 24: “In order for the Crown to rely on party liability, the underlying offence must have been committed by the principal.”

[49] In contrast to aiding and abetting, s. 464 of the Criminal Code specifically provides for the offence of “counselling an offence not committed”.

[50] It follows, then, that for a party to aid or abet a principal, there must be evidence that the party provided actual assistance to the principal by doing something that assisted the principal to commit the offence or encouraged the principal to do so. Absent proof of a predicate offence, conviction on the basis of aiding or abetting cannot be sustained.

(a) The Trial Judge’s Findings

[51] On the basis of the evidence the trial judge accepted, the appellant knew in general he was helping or facilitating marihuana grow operators in their operations and intended to help or facilitate marihuana grow operators in their grow operations. In order for the acts of the appellant to amount to aiding and abetting, however, there must be a finding that (1) the offences of production of marihuana and possession of marihuana for the purposes of trafficking occurred; and (2) the appellant’s assistance (through acts or omissions) can be linked to the commission of the offence such that he actually assisted in the commission of the offence.

(b) Specific Grow Operations with Some Connection to the Appellant’s Business

[52] The trial judge discussed four specific ASGS customers who were followed and who, on the evidence he accepted, were undoubtedly involved in actual marihuana grow operations designed for commercial sales. The trial judge outlined the details as follows, at paras. 125-144:

June 16, 2009 - 215 Pine Valley Drive, Kitchener

On June 16, 2009 a customer arrived in his vehicle and was observed purchasing products at ASGS. Son Van placed the products into the trunk of the vehicle.

When the customer left ASGS, the customer was followed by the police to 215 Pine Valley Drive, Kitchener.

On Wednesday September 16th 2009 a search warrant was executed at 215 Pine Valley Drive, Kitchener. A marihuana grow operation, consisting of 609 plants in all stages of growth, was found in the basement of the residence. One and one half pounds of dry marihuana was found in a freezer. Several thousand dollars of grow equipment were also seized. The estimated street value of marihuana seized was $682,080.00.

Electrical timer-boards, ballasts, shades, high intensity lights similar to those available at ASGS were found at this property.

June 17, 2009 - 23 Humbolt Crescent, Brampton

On June 17, 2009 a customer came to ASGS in a van. The customer backed up his vehicle to the building's front doors. Mr. Nguyen placed a number of products into black garbage bags and then placed them into the customer’s van. Mr. Nguyen also placed some black pots into black garbage bags and also loaded them into the van.

The customer drove to 23 Humbolt Crescent, Brampton. The black bags were unloaded into the garage at the location.

On July 15th 2009 a warrant was executed at 23 Humbolt Crescent, Brampton.

The police discovered an operating marihuana grow operation with 1545 marihuana plants at all stages of growth, 657.50 grams of dry marihuana packaged in clear plastic bags, and a hydro bypass. Several thousand dollars worth of grow equipment were also seized. The estimated street value of the marihuana seized was $1,743,550.00.

Products similar to those sold at ASGS were found on this property. In particular the photographs show numerous ballasts, shades and high intensity lights similar to those seized at ASGS.

July 13, 2009 - 9697 Saint-Laurent Blvd, Montreal

On July 13th 2009 Son Van loaded the ASGS Caravan with boxes and black or green garbage bags.

Son Van then drove to Green Garden Supplies. Son Van placed several black garbage bags and two boxes into the ASGS Caravan.

During the drive along Hwy #401, Son Van was stopped. Son Van told the police he was transporting lamps. Son Van lied to the police saying that he did not know the “owner”. Son Van also lied to the police that he was going to contact the owner of the van and they would have somebody meet him and pick up the lamps. The Caravan was searched and 24 boxes of growing equipment, lights and fertilizer was located in the green garbage bags.

Son Van then drove the Caravan to a Burger King located at the intersection of Boulevard Saint-Laurent and Boulevard Cremazie, Montreal Quebec. Son Van met with Simon On and Jin Pin Zhou at the Burger King. Son Van turned over the Caravan to Mr. On and Mr. Zhou who drove the Caravan to 9697 Boulevard Saint-Laurent, a large industrial unit.

The boxes and bags from the Caravan were unloaded. The Caravan was driven back to Son Van at the Burger King. Son Van got back into the Caravan and drove it home, returning the Caravan to ASGS the next day.

On July 22, 2009, the Quebec police executed a search warrant on 9697 Boulevard Saint-Laurent. The police found a large marihuana grow operation. The seizure totalled 7764 marihuana plants at all stages of growth. Tens of thousands of dollars of grow equipment were also seized. The estimated street value of the marihuana seized was $8,675,520.00. Mr. On and Mr. Zhou, along with others, were arrested.

Products similar to those sold at ASGS were found on the property. In particular, the police found electrical timer-boards, ballasts, shades, high intensity lights similar to those seized at ASGS.

Constable Smith, testified that, this highly unusual delivery method, is a typical delivery to a marihuana grow operation since the marihuana grow operators do not want the supplier to know their exact location.

August 2, 2009 - 86 Richelieu Drive, St. Catharines

The police obtained judicial authorization to electronically track the Caravan. On August 2, 2009, the Caravan was tracked by the police to 86 Richelieu Drive in St. Catharines. The Caravan remained in St. Catharines overnight.

On August 18th 2009, a search warrant was executed at 86 Richelieu Drive, St. Catharines. It was a marihuana grow operation. The police found and seized 495 marihuana plants at various stages of growth. Approximately one pound of dried marihuana was found in a fridge. Several thousand dollars of grow equipment was also seized. The estimated street value of marihuana seized was $554,400.00.

[53] The trial judge found that the appellant knew his products were destined for marihuana grow operations, and that Son, the only ASGS employee, was acting under his instructions. These findings are sufficient to support conviction for aiding production of marihuana and aiding possession of marihuana for the purpose of trafficking in relation to the July 13, 2009 delivery of growing supplies to Montreal, where a substantial grow operation was found within eight days of the delivery.

[54] Similarly, Nguyen himself loaded a customer van with supplies on June 17, 2009 and a grow operation was discovered at that customer’s location within 30 days. Here again, the conviction can be supported on the basis of the trial judge’s findings.

[55] The evidence is thinner on the other two transactions.

[56] With respect to the June 16, 2009 transaction, a customer purchased unknown products from ASGS on that date and, some three months later, a grow operation was found at a location to which that customer had been followed. In the absence of evidence as to the products purchased and in the absence of evidence that the appellant was the exclusive supplier of growing equipment to that customer, it is a stretch to conclude that the appellant actually aided or abetted the activities at this location.

[57] Finally, there was no evidence that supplies were sold to the St. Catharines grow operation. The Caravan was tracked to that location on August 2, 2009 and it stayed there overnight, but there was no evidence that the appellant actually did something to aid or abet the marihuana grow operation that was found at that location.

(c) Expert evidence

[58] The trial judge did not err in his use of the expert opinion evidence of Constable Smith as to practices, equipment and supplies commonly associated with marihuana grow operations.

E. The Crown’s appeal

[59] The Crown’s appeal depends on the proposition that Mr. Nguyen’s garden supply business generated proceeds of crime utilized to buy real estate acquired before the 120-day period in issue on the indictment.

[60] Since the Crown’s premise for the money laundering charge has been rejected with the dismissal of the conspiracy counts, the Crown’s appeal must be dismissed. There was no evidence connecting the appellant to any proceeds from the four locations to which Mr. Nguyen’s customers were followed.

F. Conclusion

[61] Accordingly, for these reasons, I would dismiss the Crown’s appeal and allow the appellant’s appeal in that I would quash the convictions on the two conspiracy counts, lift the stay of the two substantive counts, and impose the sentence and related orders made by the trial judge – that is, 20 months’ incarceration concurrent on each of the counts of production of marihuana and possession for the purpose of trafficking in marihuana.

[62] I would maintain the forfeiture orders and fine in lieu of forfeiture, as well as the order under s. 109 of the Criminal Code, as the trial judge’s conclusions on those matters have not been undermined by substitution of convictions for the substantive offences instead of the conspiracy counts.

Released: “M.T” March 3, 2016

“G. Pardu J.A.”

“I agree J.C. MacPherson J.A.”

“I agree M. Tulloch J.A.”

[^1]: The trial judge ordered that the appellant was to serve a five-year prison term consecutive to the substantive sentence if the fine was not paid within four years.

[^2]: See also Kenning, at para. 16, citing Archbold's Criminal Pleading, Evidence and Practice 2008, at para. 18-30: “There can be no conviction for aiding, abetting, counselling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred.”