Court Information

Ontario Court of Justice

Date: January 28, 2015

Court File No.: Central East - Newmarket 4911-998-12-05329-04; -05

Parties

Between:

Her Majesty the Queen

— AND —

Yuk Yuen Lee and Hong Zhen Li

Before the Court

Justice David S. Rose

Reasons for Judgment released on January 28, 2015

Counsel

Ms. Shirtliff-Hinds and Ms. Guirgis — counsel for the Crown

Mr. Wellington — counsel for the accused Ms. Li

The accused Yuk Yuen Lee — on his own behalf

ROSE J.:

Charges

[1] Mr. Yuk Yuen Lee stands charged of the following offences:

1. Production of Marihuana on June 2, 2012 in the City of Toronto (Count #1 on Information 12-05329);
2. Possession of Cannabis Marihuana for the purpose of Trafficking on June 2, 2012 in the City of Toronto (Count #2 on Information 12-05329);
3. Theft of Hydro on June 26, 2012 in Toronto (Information 12-05328);

[2] Mr. Lee is also charged with Ms. Hong Zhen Li of the following offences:

4. Possession of Cannabis Marihuana for the purpose of Trafficking on June 26, 2012 in the Region of Peel (Count #3 on Information 12-05329);
5. Production of Cannabis Marihuana on June 26, 2012 in the Region of Peel (Count #8 on Information 12-05329);

[3] Both accused were arraigned before me on November 3, 2014, and evidence was heard on November 3, 4, 5, 6, 7, and December 15, and 16, 2014. At the time of final argument, Ms. Shirtliff-Hinds properly asked that I acquit Mr. Lee of the Theft of Hydro count (#3 above) and so these reasons relate only to the remaining counts.

[4] Mr. Lee has been unrepresented throughout this trial. At the start of the trial I gave him some standard jury instructions regarding direct/circumstantial evidence and the nature of the offence. He was also given a standard information sheet regarding self-represented accused during the course of the trial. Also during the course of the trial Mr. Lee asked that his Charter Application regarding the validity of the search warrants be heard. This Application was filed by his previous counsel, and the Crown understood that it had been abandoned. I ruled the Application could be argued nonetheless and, after the close of the Crown case, it was argued. I found that Mr. Lee had no standing to bring the Application and dismissed it as such.

Crown Evidence

[5] The Crown evidence heard at trial included surveillance from several days in May and June of 2012. On the final day, three CDSA search warrants were executed and the accused were arrested.

May 21, 2012

[6] Surveillance began on May 21, 2012 at 434 Birchmount Road in Toronto. Cst. Byard had been led there as result of his investigation of tracking device data from two individuals, a Mr. Liu and Mr. Chung Fi Ling. That day Cst. Byard saw three vehicles at the location, one of which was a Blue Honda Odyssey with licence plate BHYJ 826. The accused, Mr. Lee, was seen that day driving that vehicle to his residence. Byard obtained a hydro account for 434 Birchmount, which had the name of Fushan Building Supplies. Legal ownership for that address is in the name of two companies – Genoro Investments and Lanzatera Investments. No evidence was lead of the identity of their directors or of their shareholders.

May 28, 2012

[7] On May 28, 2012, P.C. Robinson went to 434 Birchmount and parked south of the property. He walked north along Birchmount Avenue, past 434 Birchmount, and heard the sound of blowers. He smelled marihuana. The wind was blowing in a northerly direction and, based on his location relative to 434 Birchmount, the inference was that the smell was emanating from that address.

June 1, 2012

[8] Surveillance on 434 Birchmount continued on June 1, 2012 by Cst. Byard. He walked the north perimeter of the property and smelled marihuana. The winds that day were from the west, and gusty, but he isolated the odour to 434 Birchmount. He saw the Honda Odyssey with licence plate BHYJ 826 operated by Mr. Lee. Pictures were taken of 434 Birchmount, one of which shows two Honda Odysseys parked outside the building. I could not tell the licence plates on those vehicles from Exhibit 4. The pictures clearly show that 434 Birchmount is a single story industrial space with no visible windows, a vertical loading door, and a man door.

June 2, 2012

[9] On June 2, 2012, Byard was again at 434 Birchmount doing surveillance. He photographed Mr. Lee and another man, Mr. Chen, going to the back of the building. Video footage was taken by Det. Thompson and entered at trial as Exhibit 26. At 10:23 a.m. that day Mr. Lee reversed his Odyssey into the bay door. Mr. Chen went into the man door. The bay door opened by about 4 feet, and then Mr. Lee removed some white plastic trays about 1.5 feet by 3 feet in size from the back of the van. He then entered the bay door, which then closed after him. After about 20 minutes the bay door opened again, and Mr. Chen passed the same plastic trays to Mr. Lee through the open door. The trays now had, according to D.C. Byard, small marihuana plants in them. That observation was from some distance. Again, that was captured by video footage. Det. Thompson was questioned by Mr. Lee about this observation. His evidence was that he could not conclusively, or scientifically, say that the trays taken by Mr. Lee had marihuana plants, but from his experience as a drug investigator it was his belief that the plants taken by Mr. Lee were marihuana clones and nothing else.

[10] The Odyssey was surveilled by D.C. Robinson to a Tim Hortons outlet at 6990 Mississauga Road where it parked beside a Montana minivan with licence plate BERP 778. The accused, Hong Zhen Li, was seen by Det. Thompson getting out of the Montana and into the Odyssey. That vehicle then drove to 7275 Rapiston Court in Mississauga. The Odyssey drove into the loading bay, and the door was pulled down after. P.C. McKercher testified that he saw three parties in that van, and he believed there were two females and one male.

[11] At 12:26 p.m. that day, D.C. Byard saw a male come out of the man door of 434 Birchmount and unlock the chain gate at the side of the building. The Blue Odyssey with plate BHYJ 826 returned just after 1:00 p.m., but this time the accused Ms. Li was driving. She was photographed entering the man door of 434 Birchmount. Ms. Li was not seen using a key to enter that door. Ms. Li stayed until 1:55 p.m. when she left in the same Honda Odyssey. The Honda Odyssey was therefore seen arriving at 434 Birchmount twice that day; once with Mr. Lee as the driver, and once with Ms. Li driving.

June 8, 2012

[12] On June 8, 2012, D.C. Robinson and Det. Thompson attended 7275 Rapiston Court for surveillance. Both saw blowers on the building, and windows about 15 – 20 feet up. The windows were mostly covered, but three windows did have an orange glow from around the frame. Both officers heard blowers and smelled marihuana coming from the building.

June 12, 2012

[13] On June 12, 2012, Cst. Byard went to 7275 Rapiston Court at 11:31 a.m. and saw two females sitting in one of its loading bays – one of which was the accused Ms. Li. She was photographed doing that, and all three pictures have a brown minivan inside 7275 Rapiston Court. Byard testified that vehicle has licence plate BERB 778, and it was already on scene when he arrived. About 1:00 p.m. the Brown Montana left 7275 Rapiston Court and it was followed to a nearby Tim Hortons. Mr. Lee was driving the Montana at that time.

[14] Mr. Lee was surveilled by Det. Thompson going to Princess Auto but not purchasing anything there. Photographs were taken of him leaving that business. D.C. Robinson followed him to a Home Hardware store where he purchased a black bin, paying $7.99 in cash. Mr. Lee then returned to 7275 Rapiston Court in the Montana. At 3:23 p.m. that day Byard was told that the Brown Montana, plate BERB 778, and the Honda Odyssey, plate BHYJ 826, were leaving 7275 Rapiston. He and D.C. Robinson followed the Blue Odyssey to the back of Apollo Garden Supplies at Ralph Avenue and Lawrence Avenue in Toronto. He saw the Odyssey reverse to a dumpster and the door to the Odyssey open. Ms. Li and another female unloaded black garbage bags into the dumpster with the help of a male in the garden supply store. This sequence was captured in photographs. The driver of the Odyssey was not identified.

[15] Seeing this, D.C. Byard ran over to the dumpster and grabbed the newly discarded garbage bag. He put it into the back of his car and continued the surveillance. The bag smelled of vegetative marihuana. He surveilled the Blue Odyssey meeting up with the Brown Montana at some point, when the drivers of the vehicles switched. No drivers were noted.

[16] Surveillance was discontinued, and at 5:00 p.m. Byard opened the garbage which he had seized that day. He believed the contents of the bag included marihuana clippings and chemicals for plants.

June 13, 2012

[17] On June 13, 2012, P.C. McKercher went to 7275 Rapiston Court at 10:40 a.m. At 11:31 a.m., a Honda Odyssey arrived and pulled into the first garage door. That vehicle left at 2:06 p.m. with a lone male. He was followed to Princess Auto on Dixie Road. He could not identify the man at that time, but later that day he reviewed surveillance images and compared them to a MTO picture of Yuk Yuen Lee. He confirmed that the man who entered Princess Auto that day was indeed Mr. Lee. Det. Thompson surveilled Mr. Lee going to a Home Hardware before arriving at his residence, 527 Carlton at the end of the day.

June 14, 2012

[18] The garbage bag seized by Byard was more completely analyzed on June 14, 2012 by D.C. Robinson. He had taken the bag from a police storage locker and photographed its contents. According to D.C. Robinson, he took one or two bags from the storage locker. One had 4 kilograms in marihuana clippings and another had 7.1 kilograms of clippings. D.C. Robinson wasn't sure if he took one or two bags from the storage locker, but he processed the seizure as two bags.

[19] At 3:00 p.m., Det. Thompson went to 527 Carlton Drive. He saw a woman he believed to be Mr. Lee's wife drive into the garage of that residence. At 7:00 p.m., he saw Mr. Lee arrive there in the Blue Honda Odyssey.

[20] Byard prepared the search warrants for both 434 Birchmount and 7275 Rapiston. Those were executed on June 26, 2012.

June 26, 2012

[21] On that day, P.C. McKercher and Det. Thompson saw the beige Montana Van, plate BERB 778, drive past 7275 Rapiston and then return to 7275 Rapiston. The Odyssey, plate BHYJ 826, arrived at 10:33 and left at 11:25 a.m. It was pulled over in a traffic stop, and Mr. Yuk Yuen Lee was arrested for Production of Marihuana. When P.C. McKercher arrested Mr. Lee, he had a large stack of Canadian currency (which turned out to be $2,350), and four cell phones. An Enbridge bill for 7275 Rapiston was found in the black purse seized from Mr. Lee at his arrest. A pail of hydroponic chemicals was found in Mr. Lee's vehicle. No keys to 7275 Rapiston were found on Mr. Lee. Mr. Lee was turned over to a Peel Regional Police Force Constable. Ms. Li was ultimately arrested leaving 7275 Rapiston by P.C. Price of Peel Regional Police. P.C. McKercher returned to 7275 Rapiston where he found three persons under arrest, including Ms. Hong Zen Li. Under cross-examination, P.C. McKercher said that when someone looks into 7275 Rapiston from the loading bay the clone room is seen immediately, as well as a door leading to the grow operation.

[22] 7275 Rapiston turned out to have a large marihuana production facility containing some 6,758 plants, including clones. Det. Thompson took samples of the plants in each room for testing. Each sample turned out to be marihuana. The operation included dozens of high intensity bulbs, sockets, ballasts and fans. The rooms had either doors or sheets of plastic separating them. Three of the doors could be locked, but weren't on the day of the takedown, per Det. Thompson. From the loading bay area all the rooms to the grow operation were accessible. P.C. Fowlow of York Regional Police photographed and documented the scene. He admitted on cross-examination that not everyone who entered the building would necessarily see marihuana, but that it would be dependent on where the person was positioned.

[23] At 434 Birchmount a marihuana grow operation was found with 4,961 plants. It included a loading bay, building materials, sophisticated fertilizer system, a forklift and multiple rooms. According to Cst. Byard, approximately 80 – 90 percent of the building was used for the grow operation. One of those rooms was a clone room, where new plants were grown without the use of seeds. The hydroponic room at 434 Birchmount contained thousands of plants with high intensity lighting. Byard testified that it generated a strong odour. D.C. Robinson seized samples of plants in each room, all of which were ultimately tested to be cannabis marihuana. P.C. Barry Smith is also a safety officer and electrician. He testified that when he toured 434 Birchmount on June 26, 2012, one of the grow rooms was fed with a hydro diversion, i.e. the electricity supply for that room did not pass through the hydro meter. Toronto Hydro came on June 28th and shut off all power to the building. 434 Birchmount was photographed by Det. Mark Hoekstra of York Regional Police.

[24] Another search warrant was executed at 527 Carlton Road on June 26, 2012. P.C. Smith of York Regional Police was there to take photographs. In the upstairs master bedroom he located a small container of marihuana and several small bags of marihuana. On the main level he found digital scales in the kitchen and a plastic container of growing solution. A book called "Indoor Marijuana Horticulture – The Indoor Bible" was found too.

[25] Byard went to 7275 Rapiston on June 27 with a view to assisting with the dismantle of the production facility found there the day before. 7275 Rapiston also had a large marihuana production facility. Where 434 Birchmount had soil based plants, 7275 Rapiston was completely hydroponic. His evidence was that the entirety of 7275 Rapiston was devoted to a grow operation. 7275 Rapiston had numerous bottles of "serenade" garden concentrate, which was the same kind D.C. Byard found in the garbage bag thrown by Ms. Li into the dumpster on June 12.

[26] 7275 Rapiston had a baby clone room, just like 434 Birchmount, and was also a sophisticated operation. It had an elaborate lighting system, irrigation system and loading bay. By any definition both 434 Birchmount and 7275 Rapiston were extremely large, extremely sophisticated marihuana production facilities.

[27] 7275 Rapiston Court turned out to be owned by 0846353 BC Limited. As with 434 Birchmount, no evidence was lead at this trial about the identity of the individuals controlling or owning that company.

[28] After ruling on the admissibility of the proposed expert opinion from D.C. Robinson, I heard his evidence. His evidence was that the production facilities at both locations were very large and very sophisticated. He put the projected yield of the 434 Birchmount crop at some 310 pounds, assuming a conservative estimate of one ounce of marihuana per plant. That would have a value of anywhere from $558,000. to $1.389 million dollars, depending on whether the price of the marihuana was fixed on a per pound basis (less valuable) or per gram basis (more valuable). He further opined that the 7275 Rapiston projected yield was 422 pounds, again assuming the crop yielded one ounce of marketable marihuana per plant. The value of that building's crop would be from $759,600. to $1.6895 million dollars, depending on whether the valuation was made on a per pound level or per gram level.

Defence Evidence

[29] Mr. Lee testified in his own defence that he is a garden supplier by occupation. He supplies everything needed for gardening. If someone wants something he would order it and deliver it. This started in 2011, after he went bankrupt. His health isn't very good and he couldn't do much else. Everything he buys and sells is legal. He testified that he purchases everything legally, and what his customers do with the things he sells them he doesn't know. Nor does he ask. He testified that he doesn't know if any of his customers were growing marihuana. After delivering the gardening supplies he collects money, and the police are mistaken in thinking that he grows marihuana.

[30] Mr. Lee filed two letters in his defence. One is a Notice of Impending Discharge from Mr. Lee's Trustee in Bankruptcy dated February 4, 2010. A second letter was filed from his physician, Dr. Choy, dated October 10, 2013. It says that Mr. Lee is unable to perform manual labour or any work requiring mental concentration.

[31] When Mr. Lee was questioned by the Crown he said that his gardening supply business covers everything involved in gardening, including liquid formula fertilizer for flowers or farms, soil and solid nutrients, and metal material for building shelves. He elaborated on who his customers were, and that this included AB Farms, which is involved with the marihuana horticulture business, but others who do not grow marihuana. He said that he sells his wares to people who work in gardens, and grow flowers and bean sprouts. His evidence was that he is indifferent to what his customers do with the horticulture equipment he sells.

[32] The fertilizer he sells comes in boxes of 20 pounds, which in his view was not that heavy. He denied that selling and delivering boxes of that weight amounted to manual labour.

[33] Mr. Lee admitted to being at 434 Birchmount on June 2, 2012. He said that he was only delivering and wasn't sure if marihuana was there. He testified that he slid under the door, which was opened in the loading dock, and he had no control how high the door was raised.

[34] Mr. Lee testified that when he went to 434 Birchmount on June 2, 2012, he arrived with Sen Ping Chen and stayed long enough to get paid, which can be as much as 23 minutes or more. Mr. Lee was unclear initially who paid him that day, but ultimately identified "The Big Guy" and Mr. Lieu. He said that he just addresses them with nicknames.

[35] Mr. Lee did not smell marihuana at 434 Birchmount.

[36] Mr. Lee denied loading marihuana plants into his car on June 2. He said they were seedlings for Chinese peas.

[37] Mr. Lee didn't remember who he picked up on his way from 434 Birchmount to 7275 Rapiston Court that day, but he did admit to going to 7275 Rapiston Court. He denied that the trays depicted in Exhibit 16 were the very same trays seen in the video. He did not remember who paid him at 7275 Rapiston that day and denied seeing or smelling any marihuana while he was waiting to get paid. He did say that he would have been at that location and 434 Birchmount about four to five times per month.

[38] Mr. Lee testified that he didn't know his co-accused that well and if he took her to 7275 Rapiston Court it was to return a favour.

[39] Mr. Lee admitted to being at 7275 Rapiston for 89 minutes on June 12 and again smelled nothing like vegetative marihuana. He added that he spends this amount of time at 7275 Rapiston because he has no urgency in his life. On June 26, 2012, the day he was arrested, he remembers driving out of 7275 Rapiston Court after making a delivery. He was found with four cell phones but he can only account for two of them. The chemicals he was found with in his car were precisely the kinds of things that he sells.

[40] Mr. Lee told me that he only sells light stuff, and not every day.

[41] It was not surprising to Mr. Lee that marihuana was found at his house at 527 Carlton Road. He said it was used by his ex-wife who had cancer. Another item found at his house was a book called the Indoor Marijuana Bible. He testified that he read this book just to enrich himself. He also testified that the digital scales found at his house were from his previous mushroom growing business, King Oyster, where he managed the seeds and weighed them.

Legal Issues

[42] I identify the following legal issues raised at this trial.

1. Do I believe Mr. Lee's testimony, or does it raise a reasonable doubt?

Principles

[43] It is now axiomatic that I must treat Mr. Lee's evidence to the following principles:

• First, if I believe the evidence of Mr. Lee, I must acquit.
• Second, if I do not believe the testimony of Mr. Lee but I am left in reasonable doubt by it, I must acquit.
• Third, even if I am not left in doubt by the evidence of Mr. Lee, I must ask whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Lee.

Principles Applied

[44] Mr. Lee's evidence has a number of frailties, which I would enumerate as follows:

I. He said that he sells his wares to people who work in gardens, and grow bean sprouts. He testified that he does not know what they grow. On his evidence it is internally contradictory for Mr. Lee to say that his customers work in gardens, and grow flowers and bean sprouts if he doesn't know what his customers are doing with his wares.

II. He denied that selling and delivering boxes of that weight amounted to manual labour. The boxes of fertilizer and soil are sometimes in 20 pound bags for instance. This is cast against the evidence Mr. Lee himself lead that he is medically unable to perform any manual labour work. His evidence is quite contradictory as regards his stated occupation of buying, selling and delivering soil, fertilizer and building materials for gardeners and yet at the same time being an individual who cannot physically perform manual labour.

III. There is no evidence from Mr. Lee regarding how he can even make a living from buying and selling small amounts of low value products such as garden supplies. His evidence was that he delivered things like soil and fertilizer in his van. At the end of his evidence he said that he delivered things at a small profit. It also stands in stark contrast to the large amount of money found on him when he was arrested on June 26, 2012. He gave evidence that he would take orders from $500 to $2000 but that dollar value is inconsistent with his evidence that he generally was operating on his own (on June 2, he had Mr. Chen carrying the bags of fertilizer for him) peddling soil and fertilizer out of his minivan.

IV. Mr. Lee admitted to being at 434 Birchmount on June 2, 2012 and said that he was only delivering, and wasn't sure if Marihuana was there. He testified that he slid under the door, which was opened in the loading dock, and he had no control how high the door was raised. Delivery of legal garden supplies is inconsistent with arrival at a warehouse to take things in by hand and slide under the loading bay door instead of using the man door. His method of arrival and exit is inconsistent with a lawful reason to be on the premises.

V. Mr. Lee said that he arrived at 434 Birchmount on June 2, 2012 with Sen Ping Chen. Mr. Chen had nothing to do with Mr. Lee's stated business of buying and selling garden supplies but was with him that day because there were heavy bags of fertilizer in his car to be delivered. This is internally inconsistent with his evidence that he sells bags of fertilizer as part of his business. If that were true he would continuously require someone like Mr. Chen to carry his soil, fertilizer and the like. This also contradicted an answer where he identified Mr. Chen as one of the three persons who would pay him. It is further contradicted by the video evidence from June 2, 2012 which shows Mr. Lee delivering only white plastic trays. There is no delivery on the video of anything else. Those trays were taken from the Honda Odyssey by Mr. Lee himself, and he did not need any assistance for that. On one answer Mr. Chen is the labour in Mr. Lee's business. In another answer he is the customer. I find that Mr. Lee deliberately attempted to mislead me regarding his relationship with Mr. Chen, who was with him at 434 Birchmount on June 2.

VI. Mr. Lee said he stayed at 434 Birchmount on June 2, long enough to get paid, which can be as much as 23 minutes or more. Mr. Lee was evasive when asked who paid him, but later identified "The Big Guy" and said that the payors are identified only with nicknames. I do accept that Mr. Lee went to this address several times per month, which is consistent with the surveillance evidence, but it is unbelievable that such regular paying customers would only ever have nicknames.

VII. Mr. Lee didn't smell marihuana at 434 Birchmount at any time, and this is unbelievable considering the quantity of marihuana growing there as found on the 26th. There appears to be little controversy that huge grow ops were found at both 434 Birchmount and 7275 Rapiston on June 26, 2012, and there is a common sense inference that both facilities were in full stride throughout the surveillance period, generating a noticeable if not considerable odour.

VIII. Mr. Lee denied loading marihuana plants into his car on June 2, but under cross-examination he was evasive about this, saying simply that there is no proof that the plants were marihuana and that the police would have arrested him that day if they had seen him with marihuana. His evidence expanded to say that the plants were Chinese peas, but that is inconsistent with his evidence that he only sells garden supplies. In a later answer Mr. Lee testified that he took the Chinese peas from 434 Birchmount to 7275 Rapiston simply to please a customer because he was going that way. This was an elaborate explanation which attempted to justify his activities of arriving at 434 Birchmount, staying there, leaving with a tray of small plants, and going right to 7275 Rapiston after picking up Ms. Li. I do not believe that Mr. Lee went all the way to 7275 Rapiston Court in Mississauga from 434 Birchmount with a tray of Chinese peas as a favour to a customer who goes only by a nickname. This is in light of his evidence that he didn't know Ms. Li all that well on June 2. The sum total of his evidence on this point is inconsistent with his evidence that he is a supplier of gardening supplies operating on his own.

IX. Mr. Lee testified that he didn't know his co-accused that well and if he took her to 7275 Rapiston Court it was to return a favour. His explanation of the favour being returned to someone he apparently knew little of made no sense. He also said he gave her a ride because her ride broke down and she had asked him for a ride. I believe that he wasn't truthful because he was deliberately underplaying his connection with Ms. Li.

X. Mr. Lee admitted to being at 7275 Rapiston for 89 minutes on June 12 and again smelled nothing like vegetative marihuana. In his evidence he stayed everywhere at 7275 Rapiston Court that day except all the various rooms containing vegetative marihuana. That would have been some feat, since the growing area of 7275 Rapiston was huge. Also, that day was only 14 days before a grow op was found there with some 6,758 marihuana plants, several thousand of which were in maturity. I disbelieve his evidence that he smelled no marihuana on June 12 over the course of 89 minutes.

XI. Mr. Lee admitted that he had read the book "Indoor Marijuana Growers Bible", which was found in his house, but explained that this was only for personal enrichment. I believe that he did read the book, but he struggled to explain the reason. His personal enrichment explanation made no sense to me and I find that he lied about the reason for reading this book. I was provided no reason about the personal enrichment quality of the book, which judging from the title isn't surprising. The book appears to teach people how to grow marihuana and nothing else.

XII. He also testified that the digital scales found at his house were from his previous mushroom growing business, King Oyster, where he managed the seeds and weighed them. In cross-examination about his role in the mushroom business he would only say that his role wasn't clear cut or defined. This was another evasive answer touching on the reason he would have digital scales in his house.

XIII. Mr. Lee was asked about his attendance at 7275 Rapiston on June 12, 2012 for about 90 minutes, and also the next day for 95 minutes. He was evasive in his answer and claimed not to remember June 12. I did not get a clear answer about June 13, but he did say that he generally gets paid quickly and leaves quickly after a "chit chat" and walking around. He said that he if he gets paid quickly he leaves quickly. On the other hand he said that he has no urgency in his daily life. His evidence was inconsistent insofar as it went in two directions, one of speed, and lack thereof at the same time. It was an explanation to explain why on one hand he would have no knowledge of what is going on in 7275 Rapiston (leave quickly), and on the other hand why he was seen at the location for extended periods of time (no urgency).

XIV. Mr. Lee was asked why he had four cell phones in his car when he was arrested. He admitted to owning two of them, but never answered the question why the other two were in his van. His answer that he didn't know where the other two were found was plainly evasive and unresponsive to the question.

[45] For these reasons I disbelieve Mr. Lee's evidence. Furthermore, as explained above, it does not raise a reasonable doubt about his guilt on the charges. Put simply, there is nothing in his testimony which gives me a reasonable doubt about his involvement with the marihuana production facilities at either 7275 Rapiston Court or 434 Birchmount. In that regard, I must specify that I do accept his testimony that he attended at both 434 Birchmount and 7275 Rapiston four to five times per month, which is consistent with the surveillance evidence, but I reject the innocent explanation for those visits.

[46] As I explain below, the size and setup of the marihuana grow operations at 434 Birchmount and 7275 Rapiston allow me to draw a common sense inference about the mere possibility of innocent, legitimate businesses co-existing with those grow operations.

2. Production of Controlled Substance under s. 7(1) of the CDSA

Principles

[47] The actus reus of Production is a continuing one, starting at the seeding and continuing until harvest or death of the plant. In R. v. Emes, Hill J. quoted from R. v. Arnold for this proposition. It follows that, since marihuana plants require weeks to go from seedling to maturity, there will be days and weeks when nothing need be actively done in order to further the cultivation. Cultivation, and therefore production, continues during those periods when the plants are simply growing without the need for active human assistance.

[48] The term "production" is defined in s. 2 of the CDSA to include "cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained." It is also clear that one need not physically touch the plants in order to be guilty of production, see R. v. Mowry. All that is necessary is "propagating" the plant in the case of producing marihuana. While mere presence at the scene of a crime is insufficient to found a conviction, a prolonged unexplained absence at the scene of a marihuana plantation may support an inference that the accused was producing marihuana, see R. v. Jackson. Each case turns on its own facts. As Jackson makes clear, the accused's presence at the scene, in conjunction with other circumstantial evidence, the nature and context of the offence, may assist in determining whether the Crown has proven the charge beyond a reasonable doubt.

[49] Where the evidence against an accused is circumstantial, a finding of guilt may only be made if "there was no other rational explanation for the circumstantial evidence but that the defendant committed the crime." See R. v. Cheremski.

Principles Applied

[50] There was little controversy at the trial regarding the size or physical set up of the grow operations at the two locations relevant at this trial. The seizures at both 434 Birchmount and 7275 Rapiston were very large. 434 Birchmount was an industrial building found to contain 4,961 marihuana plants in an operation using 80 – 90 percent of the building. It was self-contained to the extent that it had a clone room, loading bay, custom lighting, and irrigation system. From looking at the photographs of the operation, it is clear that many, many hours of work over a long period of time would have gone into setting it up and operating it.

[51] 7275 Rapiston contained a similarly sophisticated grow operation containing some 6,758 plants, which is again an extremely large operation. It too was self-contained insofar as it had its own loading bay, irrigation system and lighting system.

[52] There is no evidence that anything other than a marihuana grow operation was in either building. In this regard the case before me is distinct from those decisions where the production facility is the basement of a residence and the accused is occupying a bedroom under the same roof, see R. v. Chambers & Madison, or R. v. Black. I make the common sense inference that the two grow operations of this size would require exclusive possession and use of the building, which is consistent with the evidence. Similarly, I find it an inescapable inference that there was only one reason to go to 434 Birchmount, or 7275 Rapiston, namely involvement in the production of the crop. To allow innocent persons with no involvement in illicit drug production into a building with such a valuable and illicit crop would engage the risk of detection which would be too great. The expert evidence established that the value of the crop at 434 Birchmount would have been at least $558,000. The 7275 Rapiston crop had an estimated value of at least $759,000. Whether those figures are completely accurate or not, it is clear that the growing contents of both locations were extremely valuable, obviously illicit, and distinctly odorous to all who enter either building. I draw the inference that this would guide who can or cannot gain access to either place.

[53] Accordingly, I make the following findings in the case against Mr. Lee.

[54] Mr. Lee attended at both 434 Birchmount and 7275 Rapiston on several days in June 2012. His testimony that he went to both places four to five times per month is consistent with the surveillance evidence which placed him at 434 Birchmount on June 2, 2012 removing trays of small plants and at 7275 Rapiston on June 2, 12, 13 and 26. I accept his evidence about the number of times he went to both locations.

[55] I find that there is physical similarity between the two trays of marihuana clones found at 7275 Rapiston Court on June 26, 2012, as depicted in Exhibit 41 and the two plastic trays containing small plants which Mr. Lee took from 434 Birchmount and delivered to 7275 Rapiston on June 2, 2012. The removal of those trays was recorded in Exhibit 26, and Det. Thompson testified that when he was observing this sequence live, those plants looked to him like marihuana clones. This is direct evidence that Mr. Lee was involved in production of marihuana at 434 Birchmount on June 2, and his involvement in transporting clones between both facilities thereby ties him to 7275 Rapiston as well. For the reasons stated above, I reject his explanation that he was merely delivering Chinese peas from one place to another as a favour for a friend.

[56] I also place some weight on the surveillance evidence which showed Mr. Lee to often be driving a Blue Honda Odyssey, licence plate BHYJ 826, and that vehicle was seen parked at 434 Birchmount on May 21, and June 1, 2012. That is circumstantial evidence suggesting that Mr. Lee was at 434 Birchmount on those days.

[57] Mr. Lee was surveilled at 7275 Rapiston for approximately 2 ½ hours on June 13, 2012. On June 26, his van was seen arriving at 10:33 and he left in it at 11:26. This is another lengthy attendance for which there is only one possible reason on the evidence, which was to tend to the growing marihuana crop. When Mr. Lee was arrested he had four cell phones, a large amount of cash and a pail of hydroponic chemicals. The last item is circumstantial evidence that Mr. Lee was involved in hydroponic marihuana production, which is how the 7275 Rapiston grow operation was set up. I have already rejected Mr. Lee's explanation for why he had that amount of cash on him, and his reason for having hydroponic chemicals.

[58] I place some weight on the fact that Mr. Lee had a book about marihuana production in this house, as in R. v. Busby. Mr. Lee admitted to reading the book but his explanation that he read the book for personal enrichment I have already rejected. I also place some weight on the scales found at this home and marihuana found there as more circumstantial evidence that he was involved in marihuana production.

[59] As I have said above, there is only one reason to be at 434 Birchmount, or 7275 Rapiston Court, and accordingly I find him guilty of production of marihuana at both locations (Counts 1 and 5).

Ms. Li

[60] I place some weight on the evidence of Cst. Byard that Ms. Li discarded a bag found to contain marihuana clippings and production paraphernalia. That evidence is not without its difficulty insofar as Cst. Robinson, who examined the contents of the bag, testified to examining two bags, when Cst. Byard only seized one. Mr. Wellington, on behalf of Ms. Li, asked me to find that it was not proven definitively that the bag of marihuana seized by Byard was the one discarded by Ms. Li. Furthermore, he suggests that the driver of the van which brought Ms. Li to the dumpster area was never proven. I am unable to accept this argument. There is a question in the evidence as to how Cst. Robinson analyzed two bags taken from the dumpster, but Cst. Byard only seized one. Nonetheless I do accept that Ms. Li did discard a bag into a dumpster which was found to contain marihuana clippings and grow paraphernalia. That is a piece of circumstantial evidence which suggests that Ms. Li has involvement in grow operations.

[61] Ms. Li was found in the evidence to have attended at 434 Birchmount on June 2, 2012 and at 7275 Rapiston on June 2, 12, and 26. There is no reason in the evidence as to why. There is no evidence that she had a key to either place or controlled the access. As I have said above, I draw a common sense inference from the size and sophistication of both grow operations that exclusive possession of each building was required by those involved in order to prevent those not involved from potentially reporting the marihuana crop to the authorities. Put another way, a marihuana grow operation must be done in secret, and not in public, or available for public viewing. Exhibits 6 and 7 show Ms. Li and another woman apparently taking a break within 7275 Rapiston on June 12, 2012. That date would have been only two weeks before some 6,758 marihuana plants were found there. Again, I reject the possibility that the 7275 Rapiston Court grow operation could have been set up from nothing between June 12 and June 26. The sophistication of the facility would have required many weeks to set up. Furthermore, the crops were in a state of maturity, and the expert opinion Detective Robinson is that there is a two-month growing cycle for marihuana, using a two-stage method as was the case in both 434 Birchmount and 7275 Rapiston. From this I infer that the marihuana crop at 7275 Rapiston would have been growing on June 12, 2012 when Ms. Li was photographed in the loading bay taking a break.

[62] Defence Counsel has suggested that the presence of doors in 7275 Rapiston should lead me to the conclusion that anyone inside of 7275 Rapiston would not necessarily know about the grow operation inside. While I recognize that there were interior doors inside that building I find that the size and scope of the marihuana crop growing inside was so large that anyone entering the warehouse would have immediately smelled the marihuana, seen the haphazard nature of the improvements designed to prevent anyone outside of the building from seeing into the interior grow rooms, seen the haphazard irrigation systems attached to the interior wall, seen the fertilizer containers and been aware of the clone room and thereby known what the facility was being used for. There is no other rational conclusion which I can draw. I therefore find that Ms. Li knew when she attended at 7275 Rapiston that it contained a crop of growing marihuana, and everything in the building was devoted to that.

[63] Mr. Wellington also argued that the offence of production of marihuana requires active participation, and that mere acquiescence in the act of another is not an offence, see R. v. Vu; R. v. Hubble. These are true propositions of law, but do not assist Ms. Li. In the case at Bar, the size, sophistication and exclusivity of space allow only one inference for attending at 7275 Rapiston Court on June 2, 12, and 26 of 2012, and that is to participate in the very substantial marihuana production facility there. This case stands apart from the case where there is a possible innocent explanation for presence at a scene, for example, where the production facility is in the basement of a dwelling and the accused occupies a bedroom in a different location of the house, or a corn farmer tending his crops in the vicinity of an open-field marihuana production facility.

[64] In Dunlop v. The Queen, the Court ruled that mere presence at the scene of a crime in circumstances consistent with innocence is insufficient to support a conviction. This is now axiomatic. Ms. Li, however, was at 7275 Rapiston on more than one occasion, and on June 12 was there from at least 11:31 when Cst. Byard was surveilling that location and took photographs of Ms. Li there. At 3:57, Ms. Li was seen discarding the bag with marihuana at the back of Apollo Garden supplies in Toronto. While the precise duration of Ms. Li's presence at 7275 Rapiston Court is unclear, it is sufficiently long that it amounts to more than mere presence at the scene. Again, this is in the context of no other rational explanation for being within 7275 Rapiston Court.

[65] It is also a piece of circumstantial evidence to me that Ms. Li was seen entering 434 Birchmount on June 2. That date was 24 days before a similarly large marihuana crop was found at that location. Again, the inference was that Ms. Li was seen entering a grow operation which had the exclusive use of the building space. It is therefore an available inference that Ms. Li was entering more than one grow operation in the relevant time frame, namely June of 2012. Her presence at 7275 Rapiston Court on June 2, 12 and 26 is not possibly as a mere innocent bystander.

[66] Considering all of the evidence, I find Ms. Li guilty of being a party to production of marihuana at 7275 Rapiston Court on June 26, 2012.

3. What is Possession of a Controlled Substance under s. 5(2) of the CDSA?

Principles

[67] Possession may be proven by personal possession or constructive possession, under s. 4(3) of the Criminal Code, which says that:

s. 4(3)

For the purposes of this Act,

(a) a person has anything in "possession" when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[68] Whereas actual possession requires personal possession (see R. v. Beaver), constructive possession requires knowledge of the nature of the item, along with a measure of control. As the Ontario Court of Appeal said, in R. v. Pham:

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell; R. v. Escoffery.

Principles Applied

[69] The circumstantial evidence heard in this case supports only one inference, which is that Mr. Lee had both knowledge and a measure of control over the marihuana found within 434 Birchmount and 7275 Rapiston Court. That circumstantial evidence is outlined above in paragraphs 53 – 58. Therefore I find him guilty of the charges in Counts 2 and 4.

[70] Similarly, the circumstantial evidence against Ms. Li supports only one inference, which is that she had both knowledge and control over the marihuana found at 7275 Rapiston. That circumstantial evidence is outlined in paragraphs 59 – 61. Therefore I find her guilty of the charge in Count 4.

[71] For the reasons stated above, Mr. Lee is found guilty of Counts 1, 2, 4 and 5, and Ms. Li is found guilty of Counts 4 and 5.

Released: January 28, 2015

Signed: Justice David S. Rose