Court File and Parties
Court File No.: 13-00030 Central East Region-Newmarket Date: 2014-12-18 Ontario Court of Justice
Between: Her Majesty the Queen — and — Khan Le
Before: Justice Peter C. West
Evidence Heard on: January 14 and 17, 2014; February 21, 2014 and November 3, 2014
Oral Submissions heard on: November 4, 2014
Counsel:
- Mr. K.W. Dickson, for the Crown
- Ms. K. Schofield, for the accused, Khan Le
WEST J.:
Introduction
[1] Mr. Le was charged on January 2, 2013 that he unlawfully did produce a substance, namely cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act (CDSA). He elected trial in the Ontario Court of Justice and pleaded not guilty. At the commencement of the trial the defence brought a Garofoli application and a voir dire was commenced. On August 13, 2014, I dismissed the defence application to quash the search warrant executed on January 2, 2013 by York Regional Police (YRP) and the Charter application to exclude the evidence discovered during the execution of the search warrant.
[2] It was agreed by both counsel the evidence called by the Crown on the voir dire would be admissible on the trial proper and the Crown did not need to recall that evidence. The Crown did recall the affiant, Officer Ladouceur of the YRP Drugs and Vice Unit, to cover a number of areas not relevant to the Garofoli application. In addition, a number of officers from the YRP Drugs and Vice Unit involved in the investigation and in the execution of the warrant were called by the Crown. It was agreed Mr. Le's evidence from the voir dire was not part of the trial proper.
[3] At the time of the execution of the search warrant at 42 Blue Anchor Trail, Mr. Le was found in the garage, which is attached to the residence, and arrested. Upon entry into the home, police discovered a marihuana grow operation in the basement and the second floor bedrooms with 1027 marihuana plants in various stages of growth, as well as clones. There were holes cut into the laundry room floor and a vent went from the laundry room, through the living room, into the fireplace and up the chimney to vent hot air from the basement, as well as vents in the closets of the bedrooms upstairs to vent hot air into the attic. A Honda Odyssey van was found in the garage.
Position of Counsel
[4] The issue on this trial is whether the Crown had proved beyond a reasonable doubt Mr. Le had knowledge and control of the marihuana grow operation discovered at 42 Blue Anchor Trail. The Crown argues a reasonable inference can be drawn that Mr. Le was cultivating marihuana in 42 Blue Anchor Trail from where Mr. Le was discovered, the number of occasions he was observed attending the house, the length of the time he was in the house on the occasions he attended, his use of the garage to enter the house, the scope of the grow operation and the layout of the house. It is the Crown's position the house at 42 Blue Anchor Trail was being used exclusively to grow marihuana.
[5] Ms. Schofield argues there is no direct evidence Mr. Le was cultivating marihuana when he was in the house. It is her position the evidence of Mr. Le attending the house can only be made respecting the date the search warrant was executed, as Mr. Le was not identified beyond a reasonable doubt to be the driver of the Honda van on the earlier two occasions.
Factual Background
[6] A video of 42 Blue Anchor Trail taken after the execution of the search warrant was filed as Exhibit 13. There was a strong odour of vegetative marihuana detected by the police officers entering the house. The video shows the ground floor bathroom was unusable, the furnishings were in disarray, there was no clear sleeping area, the couches in the living room were pushed together and the mattress in the bedroom with no marihuana plants was on its side leaning against a wall. The closet in this bedroom was filled with grow-op equipment. There was very little clothing found in the house; this clothing was on hangers in the upstairs bathroom in close proximity to the two bedrooms where there were marihuana clones and marihuana seedling plants growing. The washing machine and dryer were unplugged. The main floor had a vent running from a hole in the laundry room floor through a hallway and into the family room to the chimney to vent hot air from the basement where the bulk of the marihuana plants were situated. The toilet in the main floor bathroom was covered. Anyone wanting to use a washroom would have to go upstairs to the second floor where the two rooms with clones and seedlings were located. The second bathroom on the upper floor of the house was full of chemicals and grow-op equipment. None of the bedrooms upstairs were locked. There was also venting in the closets of the two bedrooms used to grow marihuana clones and seedlings. There were chemicals used in the cultivation of marihuana plants on the stairs leading to the basement. The basement was dominated by two grow rooms. There were no locked doors leading into these rooms.
[7] On December 17, 2012, Officer Ladouceur observed a silver Honda Odyssey, License # BEVC 503, pull into the driveway of 42 Blue Anchor Trail. He testified the Odyssey was driven by an unknown Asian male person. The garage door opened as the van drove into the driveway and then drove into the garage with the door closing once it was inside. Officer Ladouceur testified his observation of the van and the unknown male was put into his police notes on December 18, 2012, the next morning, as a late entry. Officer Ladouceur testified he later identified the unknown male as Khan Le from a photo he viewed and received on December 18, 2012.
[8] On December 20, 2012, Officer Ladouceur was part of a surveillance team that followed the same Honda Odyssey van. Officer Ladouceur observed the Odyssey van at 52 Via Teadoro as this is where observations were first set up. Officer Ladouceur was sitting in his car about 30 metres from this house on another road that intersects Via Teadoro in a t-intersection. He was using binoculars to see who was driving the van. At 14:59 hours, Officer Ladouceur observed the Honda Odyssey van arrive and drive into the garage at 52 Via Teadoro by using a garage door opener. Khan Le was driving and he was accompanied by a young girl. The same van reversed out of the garage at 52 Via Teadoro, at 15:06 hours. It was Khan Le driving the van by himself. Officer Ladouceur did not actually see Mr. Le drive into the garage of the house at 42 Blue Anchor Trail but overheard another officer provide that information.
[9] On December 20, 2012, Officer Ly, a member of YRP Drug and Vice Unit, was assisting with surveillance of 42 Blue Anchor Trail. He commenced observing this house at 15:43 hours. At 16:15 hours, Officer Ly observed a Honda Odyssey van, License # BEVC 503, pull into the driveway of 42 Blue Anchor Trail and observed the garage door open and the van drove into the garage with the door closing behind it. Officer Ly was not able to identify the driver because of distance.
[10] At 18:49 hours, on December 20, 2012, Officer Ladouceur was walking outside on the sidewalk in front of 42 Blue Anchor Trail when the garage door opened and Mr. Le drove out of the garage in the same Odyssey van he had been driving earlier. Officer Ladouceur smelled an odour of fresh vegetative marihuana as the garage door opened.
[11] On January 2, 2013, Officer Smith, as part of a team, was involved in conducting surveillance of Khan Le from 52 Via Teadoro. On that same date, at 5:22 p.m., Officer Ly was conducting surveillance on 42 Blue Anchor Trail and he observed the same van as he had seen previously drive into the garage after the door opened. At 6:28 p.m., the same day, the entire team gained entry to this house, on the authority of a CDSA search warrant. The only person inside the house was Khan Le, who was found in the garage at the back of the Odyssey van. Officers Kuvels and Smith went into the garage and Kuvels arrested Khan Le for production of marihuana. Mr. Le was handcuffed and read his right to counsel and cautioned. Mr. Le was brought into the living room and Officer Ly translated the right to counsel and caution into Vietnamese for Khan Le.
[12] Various samples were taken of the plants growing in the basement and second floor bedrooms. The samples were forwarded to Health Canada, where they were analyzed and it was determined the substance tested as marihuana (see Exhibits 17-20).
Analysis
[13] I find, based on the photographs (Exhibits 4-6) and the video (Exhibit 13) taken of 42 Blue Anchor Trail, no one was living or residing on a regular basis at this house. I do not accept Ms. Schofield's characterization of the main floor looking like a usual residence because it had couches, a TV, dishes in the cupboards and some food in the freezer. Officer Ladouceur testified on the voir dire, which is part of the evidence on the trial, it was his belief the furniture and other property was in the house to "make it appear that somebody was residing at this address." He testified further, "If someone's going in the house, they're tending the plants. They could be there from anywhere from two to four hours or longer and they're like – hungry and they want to eat something." I accept Officer Ladouceur's evidence on this issue. It is my view, the house was used primarily as a marihuana grow-op based on the following evidence: The house did not appear lived in on a regular basis. The main floor bathroom was unusable. There was a venting system coming through the laundry room floor and then continuing through the family room to the chimney so that hot air could be vented up the chimney. The washing machine and dryer were disconnected, covered with items and the hole in the laundry room floor and venting is directly in front of the dryer. The food in the refrigerator was in the freezer with only drinks in the fridge itself. Anyone wanting to use a washroom would have to go upstairs to the second floor where the two rooms with clones and seedlings were located. The second bathroom on the upper floor of the house was full of chemicals and grow-op equipment. The bathroom that was usable did have toothpaste and a tooth brush, but it also had gloves and a mask, which Officer Ladouceur testified were often found in grow-ops. Two of the upstairs bedrooms were used for growing marihuana. The third bedroom had a mattress but it was leaning against the wall and the closet contained marihuana grow equipment. The other two bedroom closets had a venting system going up into the attic of the house to vent hot air from the growing of clones and seedlings with special lights. There were grow-op chemicals in jugs or bottles throughout the house. The basement was basically two rooms devoted to the growing of marihuana plants with special lights and ballasts.
[14] Ms. Schofield argued I should not find Mr. Le was identified as being inside 42 Blue Anchor Trail on December 17 because Officer Ladouceur did not write his notes for his observations made on December 17 until December 18. Further, Ms. Schofield argued Officer Ladouceur's notes reflect he observed an "unknown Asian male" driving the van on December 17, yet, according to Officer Ly, Officer Ladouceur was at a meeting on December 17 where Khan Le's photograph was shown. Ms. Schofield submits he knew who Khan Le was from this photograph and should have recognized him, if it was, in fact, Khan Le driving the Odyssey van.
[15] I do not have any concern about Officer Ladouceur putting his observations from December 17, 2012, at 5:00 p.m., namely, his observing the Honda Odyssey van, License # BEVC 503 pull into the garage at 42 Blue Anchor Trail, as a late entry in his notes on December 18, 2012. Officer Ladouceur clearly reflected in these notes the December 17 observations were written in his notes, as a late entry, at 9:00 a.m. on December 18. Further, he testified the surveillance at 42 Blue Anchor Trail on December 17, 2012 was at 5:00 p.m. and if he went back to the police station to write up his notes he would have arrived after he finished his shift and overtime is not authorized. I accept this evidence.
[16] Ms. Schofield did not question Officer Ladouceur about his being at a briefing meeting on December 17, 2012, where Khan Le's photograph was apparently provided. It is my view this failure to put the suggestion to Officer Ladouceur that he had already seen Mr. Le's photograph on December 17, 2012 and prior to observing the Odyssey van being driven into 42 Blue Anchor Trail, was contrary to the rule in Browne and Dunn (1893), 6 R. 67 (H.L.) and unfair to the witness. In R. v. McNeill, [2000] O.J. No. 1357 (Ont. C.A.), at para. 44, Moldaver J. stated:
The rule in Brown v. Dunn was succinctly stated by Labrosse J.A. in R. v. Henderson, (1999), 134 C.C.C. (3d) 131 at 141-2 (Ont. C.A.), at p. 141:
This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
[17] Ms. Schofield conceded she did not question Officer Ladouceur as to whether he had attended a briefing on December 17, 2012, where he was provided a copy of a photograph of Khan Le. She also acknowledged the issue should have been put to Officer Ladouceur and he should have been given an opportunity to say whether or not he was at the briefing and whether he received Mr. Le's photo on December 17 or December 18. Ms. Schofield also concedes her failure to put this issue to Officer Ladouceur goes to weight.
[18] It was Officer Ladouceur's evidence in-chief he determined the identity of the "unknown Asian male" on December 18, 2012, from a photograph he was provided on that date. On December 17, 2012, the Odyssey drove past his location on Blue Anchor Trail where he was sitting in a car. The van slowed because it was turning into the driveway of 42 Blue Anchor Trail. He observed the driver, who was unknown to him at that time. When he saw the photo of Khan Le on December 18, he knew the person who drove by him in the Odyssey van was Mr. Le.
[19] In fact, Ms. Schofield put to Officer Ladouceur he had not seen a photo of Mr. Le on December 17, rather she suggested the first time he viewed a photo of Mr. Le was on December 18, to which Officer Ladouceur agreed. Ms. Schofield then put to Officer Ladouceur he had not viewed a photographic line-up, just a single photo of Mr. Le. Officer Ladouceur agreed but testified it was his intention to continue observations of the address to see who was attending and was in charge of the marihuana grow operation at that house.
[20] I accept Officer Ladouceur's evidence on this issue. He observed an "unknown Asian male", he later identified from a single photograph he received on December 18 as Khan Le. I further draw the reasonable inference Mr. Le used a garage door opener to open the garage door to gain entry into the house. I have already found Officer Ladouceur, in the Garofoli application, to be a "credible witness despite being subjected to a very thorough and detailed cross-examination by experienced counsel and his answers were responsive, forthright and believable." (See Ruling August 13, 2014, at para. 47) In fact, Officer Ly, in his evidence in-chief, was directed by the Crown to page 62 of his notes, which referred to observations he made of 42 Blue Anchor Trail on December 17, 2012. Officer Ly had not brought his notebook to court and the Crown provided him with a copy of the notes. Officer Ly testified the person he saw driving the Odyssey van on January 2, 2013 was the same person he observed driving this same van on December 17, 2012. It is my view, Officer Ly's evidence supports Officer Ladouceur's identification of Khan Le as the driver of the Odyssey van entering the garage at 42 Blue Anchor Trail on December 17, 2012 at 5:00 p.m.
[21] I find that on December 20, 2012, at 2:59 p.m., Officer Ladouceur observed Mr. Le driving the Odyssey van, which pulled into the garage at 52 Via Teadoro, with a young girl as a passenger. At 3:06 p.m., Officer Ladouceur observed the same Odyssey van back out of the garage at 52 Via Teadoro and Mr. Le was driving. Surveillance followed the van and Mr. Le to 42 Blue Anchor Trail, and at 4:15 p.m., Officer Ly observed the same van (Licence #BEVC 503) turn into the driveway of 42 Blue Anchor Trail and enter the garage, which opened as the van pulled into the driveway. I find there is a reasonable inference the driver of the van used a garage door opener to open the garage door to gain access to the house. There were no other vehicles in the driveway or in the garage when the Odyssey van pulled into the garage. Officer Ly testified he could not identify the driver because of the distance.
[22] Officer Ly testified this same van always drove into the garage at 42 Blue Anchor Trail. He was involved as part of a surveillance team following this van on different dates. On different dates he observed the van enroute to 42 Blue Anchor Trail as part of the surveillance. On December 20, 2012, at 4:15 p.m., he observed the van drive into the garage at 42 Blue Anchor Trail. He had seen the same van on two other occasions, in addition to this occasion on December 20, 2012. I find, from the evidence, those other two occasions were December 17, 2012 and January 2, 2013.
[23] At 6:49 p.m., on December 20, 2012, Officer Ladouceur was standing outside 42 Blue Anchor Trail when the garage door opened. He detected a smell of fresh vegetative marihuana and observed the Odyssey van back up out of the garage being driven by Khan Le. I find, based on the evidence respecting observations made by officers on December 20, 2012, Khan Le was the driver of the Odyssey van as it left 52 Via Teadoro at 3:06 p.m. I find this van was followed to 42 Blue Anchor Trail where it entered the garage by use of a remote garage door opener. I further find this van exited the garage at 6:49 p.m., with Khan Le driving. Mr. Le had been inside the house for over two and a half hours. In my view, it is a reasonable inference Mr. Le was tending to the marihuana plants during that period of time. He also exercised control over the premises by using the remote garage door opener.
[24] On January 2, 2013, at 5:22 p.m., Officer Ly observed the same van (Licence #BEVC 503) drive into the garage at 42 Blue Anchor Trail. The garage door opened as the van turned into the driveway. Officer Ly believed the garage door was opened by a remote garage door opener. He agreed the driver was the same Asian male person he observed driving the van on December 17, 2012. After Officer Ly observed the van drive into the garage he was relieved by another officer and was not directly observing the house.
[25] The search warrant obtained by Officer Ladouceur was executed at 42 Blue Anchor Trail at 6:28 p.m. on January 2, 2013. Khan Le was found behind the Odyssey van in the garage and was placed under arrest for production of marihuana. It would be absurd to believe Mr. Le remained behind the van in the garage from the time he entered at 5:22 p.m. until he was arrested shortly after 6:28 p.m. Mr. Le was the only person inside the house. In my view, Mr. Le was at the house to tend to the marihuana plants. There is strong evidence from which a reasonable inference can be drawn as to his knowledge and control of the marihuana plants found in the house.
[26] I find Mr. Le was inside the house on three separate occasions, December 17, December 20, 2012 and January 2, 2013. On December 20 he was inside the house for approximately two and a half hours and on January 2 he was inside the house for over an hour before the search warrant was executed. It is not known how long he was inside the house on December 17. Mr. Le offered no explanation, on the trial proper, for why he would be attending 42 Blue Anchor Trail on three occasions. As I have previously indicated the only logical reasonable inference is he was tending the marihuana plants. I have found this house was used primarily as a place to grow marihuana. A sophisticated grow operation was discovered by police upon entering the house. There was a strong odour of fresh vegetative marihuana. I find Khan Le used a remote garage door opener to gain access into the house. The front door was locked and had a lockbox, similar to a house that is being sold by a realtor. The use of the remote garage door opener to gain access on all three occasions he was observed entering the house demonstrates that Khan Le exercised control over the premises. I find anyone entering the premises would know it was being utilized to grow marihuana. None of the rooms in the basement or the two bedrooms on the upper floor were locked preventing access by persons not authorized to enter. Consequently, anyone entering this house with a remote garage door opener or a key would have unrestricted access to the marihuana plants. I further find there is no other logical reason for Mr. Khan Le to be inside this house on three occasions in the space of approximately two to three weeks, except to be tending to the marihuana plants.
[27] While no two cases are identical, in R. v. Thanh Doan, [2011] O.J. No. 4321, at paras. 3 and 4, the Ontario Court of Appeal upheld a conviction registered by Minard J. (O.C.J.) where he found:
…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.
…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. …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.
[28] Further cases have found knowledge and control where an accused enters the premises with a remote garage door opener, or uses a key to gain entry, the house is used primarily or predominantly for the purpose of growing marihuana, the accused can be in the house for as little as 13 minutes in one case or in another case for five hours and where the accused's vehicle is observed on two occasions outside the house in the driveway (see R. v. Dieu Chu I, 2009 ONCA 121 and R. v. Thanh Bao Nguyen, 2014 ONCA 7). Of course it is the whole of the evidence which must be considered and it is usually a combination of a number of pieces of evidence, which when taken together, demonstrate knowledge and control of the grow operation.
[29] Consequently, I find the Crown has proven beyond a reasonable doubt Khan Le exercised control and had knowledge of the sophisticated marihuana grow operation found at 42 Blue Anchor Trail and that he was actively engaged in tending to the 1027 marihuana plants.
Released: December 18, 2014
Signed: "Justice Peter C. West"