Ontario Court of Justice

(Toronto Region)

Between:

Her Majesty the Queen

— and —

Xueyan Pam

Before: Justice Chapin

Heard on: December 15, 2011

Ruling on Application for a Directed Verdict released on: December 16, 2012

Counsel:

• Joshua Cramer, for the Crown
• Kim Schofield, for the accused Xueyan Pam

Ruling on Application for Directed Verdict

Introduction

[1] This is a ruling on an application for a directed verdict.

[2] Ms. Pam is charged with theft of electricity, production of marijuana, possession of marijuana for the purpose of trafficking and simple possession of marijuana. The offence date for all of the charges is July 21, 2010. Ms. Pam has made an application for a directed verdict of acquittal on all counts except the simple possession of marijuana.

The Evidence

Crown's Case

[3] The crown called three witnesses and a number of documents were admitted on consent.

[4] Ms. Schofield, quite reasonably, made the following admissions at the outset of the trial:

• the nature of the substance seized by the police in relation to these charges was marijuana,
• continuity of all exhibits,
• that the amount of marijuana seized from […] Terrace Drive was 828 plants weighing just over 72.5 kilograms with an expected yield of 58,663.8 grams and that that amount would be for the purpose of trafficking,
• that the amount of marijuana seized from [...] Drive was 13 grams,
• that the life cycle of a seed to seedling would be 3 - 7 days and from clone or seedling to harvest would be approximately 16 weeks,
• that the largest of the plants found at the […] Drive address were approximately 12 weeks old,
• that an expert would not be able to say one way or the other whether or not the plants found upon execution of the search warrant were moved into the address at some point between germination and the date of execution of the search warrant; however, moving the plants in this manner would likely be disruptive to the growth cycle, and is therefore not recommended, as it could slow the growth of the plants and reduce the expected yield,
• that the value of the plants if sold at the wholesale level in lots of 10 pounds, the total value would be $219,938.00 dollars,
• that if sold in 1 pound increments at $2,000 - $3,000 per pound, the total value would be between $258,750 and $388,125.00,
• that if sold in one ounce increments with one ounce selling at $180.00 to $250.00 dollars, the value of total yield would be between $372,600 and $517,500.00 dollars,
• that if sold at gram level at $10.00 per gram the value would be $586,638.00, and
• given the scale of the operation one would expect that the yield would be sold at the bulk level, and therefore it would be expect $219,938.00 would be earned on the immediate sale.

Detective Constable Kerr

[5] The first witness, Detective Constable Michael Kerr was the affiant on the information to obtain search warrants with respect to two locations in Toronto, […] and […] Drive. Ms. Pam owns both of these residences. The search warrants were issued on July 21, 2010 and were executed on the same day shortly before midnight.

[6] D.C. Kerr assisted with the search of […] Terrace. Immediately upon entering the residence it was apparent to him that the home was being used as marijuana grow operation as there was an overpowering smell of marijuana in the house. The residence was checked for occupants and none were found. After the home was secured the officers were in the process of dismantling the grow operation and searching for evidence.

[7] D.C. Kerr seized two documents that were found on a table on the main floor of that address. The first was a letter dated July 12, 2010 to Ms. Xueyan Pam of […] Terrace regarding a 2011 Tax Account Reassessment. The document was found lying on the table but Officer Kerr conceded that it may have been in an envelope. He was not sure.

[8] The next document was an Enbridge gas bill dated July 9, 2010 addressed to Ms. Xue Pan at […] Terr. Officer Kerr was not sure but thought that the Enbridge bill was still in an envelope when he found it. He didn't recall if the envelop was sealed or open and it was not seized.

[9] Officer Kerr seized the documents and put them in a property bag and submitted them to the property unit for storage.

[10] D.C. Kerr also assisted with the dismantling of the operation and his role was to seize the marijuana from that address. There were 828 plants in total. The rooms were labelled by the central note taker. There were five separate rooms where plants were growing. Room one was in the basement and contained 180 plants that were 2½ feet tall. Room two was also in the basement and 142 plants were found there. Room three was on the second floor of the house and contained 390 young plants called clones. Room four was also on the second floor and contained 70 plants there were 2 feet tall and room five, which was also on the second floor, contained 46 plants which were 1½ feet tall.

Patrol Constable Kovacs

[11] P.C. Kovacs assisted with the execution of the search warrant at […] Avenue that evening. She was the central note taker and also videotaped the residence. Her evidence was that it was apparent to her as soon as she walked in the door of that the residence that is was being used as a marijuana grow operation. The videotape was entered as an exhibit and showed that along with the aforementioned letters there was a wallet on the table that contained a starbucks card that was visible and perhaps other material. The videotape also reveals that there are at least two pieces of paper under the wallet that were not seized.

[12] The video tape showed that there was equipment consisting of 45 bulbs, shields, 36 ballasts, 8 timer boards, 21 splitters, a hydro by-pass, venting tubes, mylar sheeting, wiring, soil and bamboo sticks to support older plants throughout the house.

[13] In the basement in what has been referred to as room one earlier there were three stacks of empty planters with some soil in them. There was also a small room with hydro panels with splitters attached to the walls. Wires were running to the bulb shields and holes had been drilled through the walls to allow wiring to pass through.

[14] In room two there were stacks of bamboo and plants and an electrical bypass through the wall, wiring from the timer boards running to the bulb shields, exhausts to vent air and there was a bathroom attached to this room that was being used as a chemical bath with hoses running out into the grow area. There were no signs that this bathroom was being used for personal use.

[15] On the main floor there was a closet near the entrance with tubing running from the floor to the ceiling. There were no personal effects in the closet. The main floor also had a washroom to the right of the living room and no personal effects were found in it.

[16] There were two stoves in the kitchen on the main floor as well as a table which showed a number of documents including the letter from Equitable Investment mentioned earlier and the Enbridge bill. There was an ING insurance card in the name of Tien Hoa Kim with an effective date of October 6, 2008 and an expiry date of October 6, 2009. There was also a receipt from a cellular shop. Splitters were found in the kitchen drawers and plant food was located on the counter.

[17] The video also showed that there were bags of soil and chemicals in the kitchen along with shoes, a mattress on the floor, a yellow bottle of fertilizer and a box with two high pressure sodium bulbs and hydro splitters.

[18] There were bulbs in a box in the residence. No attempt was made to determine if there were fingerprints on the bulbs.

[19] In the living room there was a shredder that was either not assembled as yet in a box, or had been disassembled and placed in the box. There were marks on the legs of the shredder where they would make contact with the base. However, there was no indication of the presence of marijuana or marijuana debris on the shredder.

[20] On the landing coming up from the main floor there were cabinets to the left and right. On the second level there was a laundry closet containing ballasts and a timer board and there were holes cut through the rooms in the closet with wiring that was coming up from the living room.

[21] In what has been referred to as room 5 the windows and the floor were covered with mylar plastic. P.C. Kovacs advised that this facilitates growth of the plants and also prevents damage to the floors. There was also a closet with no personal effects and black specks of mould around the baseboards. The venting tubing from the floors below ran up into this room. The bathroom on that level was also used as a chemical bath.

[22] In room four mylar sheeting was on the floor and windows and there were more venting tubes. There were ring marks on the mylar sheeting on the floor approximately 12 - 14 inches in diameter, similar to the size of the empty pots she located in room one. P.C. Kovacs testified that in her experience those could have been made by plant containers.

[23] In room three there were 8 inch pots with plants. She estimated that the larger pots found in room one were, used in the process of growing marijuana plants.

Detective Constable Atkinson

[24] D.C. Atkinson was assigned to dismantle the marijuana grow lab at […] Terrace. He characterized it as a soil based grow operation that consumed the majority of the house and used an electrical bypass.

[25] Officer Atkinson was able to determine that the house was being used as marijuana growing operation immediately upon entering it because of the smell, the fans and the venting.

[26] He explained that the timer boards are used to regulate the operation of the lights and fans such that they are consistent with the growing cycle of the plants. The timer boards at this location were set for 12 hour cycles. The state of the plant will determine the number of hours of light required.

[27] In this location the electrical meter had been bypassed. Someone had chipped away through the concrete in the foundation of the basement and had clamped the electric wiring underneath the meter.

[28] Officer Atkinson's task was to assess the operation and electrical usage and to ensure that the house was safe by disconnecting the ballasts which were getting extremely hot. He then turned off all the fans and the lights. The ballasts present a fire hazard.

The Arrest of Ms. Pam

[29] Ms. Pam was located at […] Drive sleeping next to her partner just after the police arrived at 11:30 p.m. The door was locked and P.C. Atkinson knocked on it and made the announcement that he was a police officer with a search warrant. Ms. Pam opened the door. Her partner, Mr. Yu was also found in the bedroom.

[30] D.C. Atkinson conducted a search of the bedroom and located some dried marijuana in a locked bedside table using a key that the accused had pointed him to. His key was found under a blotter. There was nothing else seized from the drawer.

[31] D.C. Atkinson also located some documents. He found a Toronto hydro electric bill dated June 21, 2010. The name of the customer was Xue Yen Pam and it was addressed to […] Terrace and had a paid stamp on it. There was also a real estate listing for […] Terrace, a three page letter from a lawyer named Jack Lee, and a four page document relating to land transfer tax dated March 2, 2010. All of these documents were located on a desk in the bedroom.

[32] D.C. Kerr identified Ms. Pam by looking at her driver's licence which had the address of […] Drive. The information on C.P.I.C. also showed her address as […] Drive.

[33] There were other people in the house that each had their own rooms. Ms. Pam's mother was living in the basement and there were two other gentlemen in the house. The police determined that these people were tenants.

Legal Analysis

The Position of the Applicant, Ms. Pam

[34] Ms. Schofield on behalf of her client submits that the test on a motion for a directed verdict can be found in a decision of Justice Molloy in R. v. Collins [2003] O.J. No. 820 (S.C.J.), a circumstantial case involving marijuana plants in a residence, with respect to the test on a motion for a directed verdict. At paragraphs 20 and 21 Justice Malloy said:

20 The test for deciding whether a judge should enter a verdict of acquittal rather than permitting the case to proceed before the jury is well settled. The question is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. A directed verdict should not be granted where there is admissible evidence which could, if believed, result in a conviction: United States of America v. Shephard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, 70 D.L.R. (3d) 136; R. v. Monteleone, [1987] 2 S.C.R. 154, 35 C.C.C. (3d) 193, 41 D.L.R. (4th) 746; R. v. Charemski, [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225, at para 2. Further, there must be some evidence on every essential element of the crime charged in which the Crown has the evidential burden: R. v. Charemski, at para 3. The test for a directed verdict is essentially the same as the test applied by a judge at a preliminary inquiry in determining whether there is sufficient evidence to commit an accused for trial: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

21 The Crown's evidence against these two accused is entirely circumstantial. Since 1838, the rule in Hodge's Case has applied to prevent a conviction based on circumstantial evidence unless the evidence is consistent with the guilt of the accused and inconsistent with any other rational conclusion. Prior to the Supreme Court of Canada's decision in R. v. Arcuri, there was some confusion as to whether a judge considering a directed verdict in a circumstantial evidence case was required to apply the rule in Hodge's Case, or whether that was an issue that had to be left to the jury. In Arcuri, McLachlin C.J. (writing the unanimous decision of the full Court) confirmed that the test to be applied in such cases was accurately set out in the dissenting decision in R. v. Charemski, and that the only dispute between the majority and the dissent in that case was as to the result, not the applicable test. It is now clear that where the Crown's case is based entirely on circumstantial evidence, the trial judge must do some limited weighing of the evidence in order to determine "whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw", or to put it another way, "whether the evidence, if believed, could reasonably support an inference of guilt": R. v. Arcuri at para 23.

[35] Ms. Schofield submits that there is a competing inference in this case that Ms. Pam is an innocent landlord. She points to the following facts:

• Ms. Pam was not residing at that address,
• there was no evidence that she had a key for that address,
• there was no evidence from anyone indicating that Ms. Pam had access or attended at […] Terrace,
• no personal effects of Ms. Pam were located at […] Terrace,
• it would not be unusual for documents to be sent to a home owned by Ms. Pam with her name and address,
• the envelopes may have been sealed prior to the arrival of the police given the evidence of Officer Kerr, and
• no fingerprints belonging to Ms. Pam were located at […] Terrace,
• there were documents belonging to other people located on the table at […] Terrace and a wallet containing a Starbucks card which was not seized by the police.

Position of the Crown

[36] The crown argues that Justice Malloy employed the wrong test in R. v. Collins supra and referred to the decisions of the Supreme Court of Canada in R. v Arcuri [2001] S.C.R. 828 (S.C.C.) and R. v. Mezzo, [1986] 1 S.C.R. 802 (S.C.C.).

In Arcuri supra at paragraph 23 states:

The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

Then later at paragraph 27:

There was no disagreement between the majority and the dissent as to the test that the preliminary inquiry justice must apply. On the contrary, both the majority and the dissent clearly reaffirmed Shephard, supra, and its progeny: see Charemski, at paras. 2 and 4 (per Bastarache J.); at paras. 19 and 30 (per McLachlin J. dissenting). Any disagreement concerned not the test for sufficiency but the question of whether sufficient evidence was led in that case.

In R. v. Mezzo, [1986] 1 S.C.R. 802 (S.C.C.) at paragraphs 12 - 13, the court said:

A line of jurisprudence subsequently developed which incorporated the rule in Hodge's Case into the trial judge's deliberations on a motion for a directed verdict, thus creating an exception where circumstantial evidence was concerned to the narrow role of the judge at this stage of the trial.

13 The divergence of views on this point was not resolved until the mid 1970's. In John v. The Queen, [1971] S.C.R. 781, this Court stated that the rule in Hodge's Case was simply an elaboration of the reasonable doubt standard. The logical extension of this position occurred in R. v. Paul, [1977] 1 S.C.R. 181, and Lavoie v. The Queen, [1977] 1 S.C.R. 193, cases in which this Court held that the rule in Hodge's Case and the question of reasonable doubt does not arise on a motion for a directed verdict. Although additional confusion has been generated by Ritchie J.'s seeming approval in Shephard of the notion that Sir Lyman Duff C.J. intended to create a special exception in Comba, I think his remarks must be read in light of the clear rejection only a few months later of the relevance of the Hodge's Case standard to directed verdicts in Lavoie, supra. Laskin C.J. wrote the judgment of a unanimous Court which included Ritchie J. and which reads in its entirety as follows at p. 193:

It will not be necessary to hear you, Mr. Gagnon. We are all of the opinion that there was no error in the judgment of the Court of Appeal. On the motion by the accused for a directed verdict, the rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136, does not apply, as this Court held in R. v. Paul, [1977] 1 S.C.R. 181. The appeal is dismissed.

Accordingly, the notion of a Comba exception to general principles in terms of the standard against which to measure circumstantial evidence at this stage of a trial was finally put to rest and the restrictive role of the trial judge reaffirmed.

[37] The Crown also referred to the decision in of the Supreme Court of Canada in R. v. Sazant, 2003 179 CCC (3d) 1 par. 20 and R. v. Montour [2002] O.J. No. 141 (Ont. C.A.) which stand for the principle that a preliminary hearing judge or judge hearing an application for a directed verdict exceeds their jurisdiction if he or she engages in weighing competing inferences.

[38] I agree with the crown that on this application I can only assess the evidence supporting an inference which, if believed, could reasonably support an inference of guilt.

Crown's Evidence Supporting Guilt

[39] The crown points to the following evidence in support of an inference of guilt with respect to the charges:

• Ms. Pam owns […] Terrace,
• Ms. Pam purchased that house March 2, 2010 for $650,000.00,
• four months and 19 days after she purchased it the police discover a large grow operation in her house,
• the grow operation was large and sophisticated,
• there were holes cut into walls and ceilings to allow passage of electrical wires,
• there were holes into the floor to bypass the electrical wire,
• there were venting hoses throughout the various sections of the house,
• all of the accoutrements were installed including a timer board 36 ballasts, 21 electrical timers and 45 bulbs,
• there were chemical baths set up in the washroom in basement and two separate washrooms second floor,
• various windows were covered with mylar,
• venting tubes converged and ran up through a hole in ceiling through the top floor and into the attic,
• all of these modifications would have taken a significant amount of time and would likely consume a significant portion of the 4 months of the purchase and the execution of the search warrant,
• the plants were of various heights in various rooms suggestive that it had been in existence for some time,
• one room had clones and one room had 1½ tall plants and another had plants that were 2 ½ to 3 feet in height,
• there was evidence of previous harvest,
• circular lines were on the floor indicating previous pots had been placed there,
• the marks were approx 12 - 14 inches in diameter and approx same as a stack of unused pots found in the basement and those pots had some soil in them suggesting that they had been previously used - three stacks in the basement stairs - about 14 - 21 pots in the three stacks,
• there was a machine for shredding marijuana on the main level that was dismantled,
• the portion of the legs that fit into the base appear to be scratched suggesting that the machine may have been assembled and then dismantled, and
• the evidence from the agreed statement of fact as follows:
  • it takes approx 16 weeks to get from clone to harvest
  • assuming that the plants were grown from clone to harvest, the plants from the previous harvest would have been growing for a significant period of time between the date Ms. Pam purchased […] Terrace to the date the search warrants were executed.

[40] The crown also points to the documents located at both locations in establishing some knowledge on the part of Ms. Pam and submits that:

• there was a letter from the equitable trust company addressed to Ms. Pam at […] Terrace dated July 12, 2010, just nine days prior to the execution of the search warrant,
• the equitable trust letter shows that Ms. Pam was receiving documents of a highly important nature at the grow operation location,
• the document indicates that there was not enough money in the mortgage account to cover the reassessment which was important information,
• the Enbridge gas bill, was also addressed to Ms. Pam at […] Terrace, dated July 11, 2010, just 11 days prior to the execution of the warrant,
• the hydro bill, on its face, appears on its face to have been addressed to […] View and is stamped from the Toronto Dominion Bank, indicating it was paid June 29, 2001, just 8 days after it was issued,
• that the hydro bill is admissible for the truth of its contents because of the doctrine of documents in possession of an accused, and
• also a quantity of marijuana is found at […] in locket cabinet showing that she had access to marijuana.

Court's Decision

[41] In this case it is admitted that there was a grow operation in existence in […] Terrace for a significant period of time. I find that I am also satisfied there is some circumstantial evidence that based on documentation found at that address and at […] Drive to support an inference that Ms. Pam had knowledge and control of what was happening at […] Terrace.

[42] The application is dismissed.

Justice L. Chapin