Court File and Parties

Court File No.: Old City Hall

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Van Van Le

Trial Judgment delivered on December 22nd, 2014 and on May 15th, 2015

Counsel:

• Ms. K. Aird for Prosecution Service of Canada
• Ms. K. Schofield for Van Van Le

HARRIS J.:

BACKGROUND

[1] Canada is a wonderful country where ability is recognized and many are given a second chance. The defendant in this case, Van Van Le was convicted of three counts of producing cannabis and sentenced to a '2 years less 1 day' conditional sentence in 2007 and remarkably, in August 2012 he was granted an authorization by Health Canada to produce and store 3.9 kilograms of marijuana in Toronto for medical purposes. That 2012 licence produced a very interesting complication in this case in which Van Van Le faced charges of production of marijuana etc. arising from the takedown of a grow operation at 65 Craydon Avenue in Toronto on April 3rd, 2013.

[2] On April 3rd, 2013 Van Van Le was charged with production of marijuana, possession of marijuana over 3 kilograms for the purpose of trafficking and theft of hydro under $5,000 contrary to the CDSA and the Criminal Code. A trial was held on the above charges and in a surprising turn of events Mr. Le produced Health Canada documentation that established that he was licensed possess and produce marijuana for medical purposes on the date of his arrest. In this proceeding, I dealt with the above charges on their merits and delivered a judgment on December 22nd, 2014 in which Mr. Le was found guilty of the lesser offence of possession of marijuana over 3 kgs. (I ultimately found he was in possession of 14.9 kilograms of wet marijuana that he was transporting in his van in garbage bags, including 3 bags of clones). The ultimate question for determination on May 15th, 2015 (and it was particularly important in view of the mandatory minimum sentence for possession of 6 or more plant) was whether Van Van Le was exempt from criminal liability as a result of his Health Canada license that permitted possession of 3960 grams of dry marijuana?

[3] I will first address the merits of the various drug and drug-related charges. This is a case that turns on permissible inferences that may be drawn from circumstantial evidence. As noted above, Van Van Le was charged on April 3rd, 2013 with production of marijuana, possession of marijuana over 3 kilograms for the purpose of trafficking and theft of hydro under $5,000 contrary to the CDSA and the Criminal Code. On October 31st, 2014, I dismissed this defendant's section 11(b) Application. Originally five individuals were charged with offences in relation to a marijuana grow operation that was raided by Toronto police on April 3rd, 2013. Prior to trial, Crown counsel withdrew charges against two defendants and Chia Luong and Thanh Phong Le (no relation to the defendant Van Van Le) pleaded guilty to possession for the purpose (over 3 kg) and were sentenced. Van Van Le subsequently pleaded not guilty and his trial proceeded on November 27th and 28th, 2014 and was adjourned for judgment to December 22nd, 2014.

[4] Van Van Le admitted possession of a large quantity of bio-material in the back of his van. There was marijuana cultivation by-products, refuse and clones including a large quantity of soil, stems, leaves and plant clippings in the van. Mr. Le testified that the 30 to 40 garbage bags of material he was transporting in his vehicle were in his possession for the purpose of being dumped, abandoned and, effectively destroyed. On opening the garbage bags, police discovered that of the 30 to 40 or so bags in the van, there were three bags of what they described as "clones" and the total weight of "bulk wet" marihuana was 14.9 kilograms. There was no evidence tendered as to the usable weight of marijuana found in the van or its street value. Essentially, the issues for determination are whether there are reasonable inferences to be drawn from this circumstantial evidence that could support findings of guilt on any of the three charges the defendant faces.

EVIDENCE

[5] Following a notification by Toronto Hydro about excessive hydro consumption, police began surveillance of 65 Craydon Avenue in Toronto. Between February 27th, 2013 and April 3rd, 2013, the date the warrant was executed, the police commenced surveillance of the property and observed the house on six occasions. Van Van Le was never seen at that location. Prior to a search warrant being executed at the above address on April 3rd, Mr. Le's blue van was observed backed into the driveway at 65 Craydon Avenue (at 8:12 a.m.) ― when observations of the property began on that date.

[6] Van Van Le testified he arrived early that morning at the address because the night before, his girlfriend Thao Do asked him to come over to help her clean the house. He testified he did not know she was staying at a residence in which a marijuana grow system was in operation, as he had not been inside that residence in the past. He stated that he had been operating a "grow" at 1386 Wilson Avenue for a few months at the home of his ex-wife under a Health Canada authorization for medical purposes (arthritis), and early that morning he had been tending his own grow operation that day (for 3 or 4 hours) and was travelling to a dumping location with 25 to 30 garbage bags filled with mostly soil, leaves and clipped marijuana stems. He stopped on the way, at about 8 a.m., at his girlfriend's place to "help her clean". He stated that when he went into the house at 65 Craydon Avenue, he knew it was "grow-op" because of the "smell and bags of garbage there." Mr. Le gave evidence that he watched a movie at the residence, and his girlfriend asked him to remove some garbage he thought was soil and testified that another male (he insisted it was Chia Luong wearing a jacket and white ball hat) at the premises at that time, loaded garbage bags in his van, and he left at about 12:17 p.m. and was arrested a short distance away (at 12:28 p.m.).

[7] Detective Constable Michael Kerr entered the house on a search warrant on April 3rd, 2013 and found garbage bags of soil in the kitchen and a strong smell of marijuana in the house. He testified that soil can only be used once when growing marijuana and "you have to take it out all the time". He found a grow operation in two bedrooms at the back of the house and in the basement (wall-to-wall marijuana) with lights on timers, an industrial fan and Hydro bypass. He stated that Phuong Le (no relation to Van Van Le) was the Hydro customer and a bill in his name was found at the residence. The home was owned by Tran Kim Do, Phuong Le's wife, and both were initially charged with "production". Det. Kerr agreed that there was a large television in the living room along with movie cases and there were no documents in the house in Van Van Le's name.

[8] Detective Constable Simone Huber testified that when she arrived at the residence to begin surveillance, a blue van (belonging to Mr. Le) was parked into the driveway. She stated that at 12:17 a male in a white ball cap came out the side door, opened the trunk and loaded black garbage bags into the rear of the van ("more than three") from the side door of the house. He then closed the trunk and drove away towards Weston Road. She notified her team and was advised that the driver (Van Van Le) was arrested at 12:28 p.m. D.C. Huber testified that she did not see the person's face but that there was only one person loading and driving the van. She agreed that the smell of marijuana in a grow operation can cling to your clothes until you wash them.

[9] In an Agreed Statement of Facts, it was noted that an extensive grow operation was in place at 65 Craydon Avenue on the date of the search and there was a Hydro bypass discovered in the attic. "In the kitchen were a large pile of many black plastic bags filled with soil". "Mr. Le left 65 Craydon at 12:17 p.m. and was arrested at 12:28 p.m. after being followed by police." "Found in his vehicle are 30 to 40 black garbage bags in the rear. Found inside some of these bags are used soil and marijuana clippings. Some of the bags (at least 3) contain marijuana clones". "Upon his arrest, there was a smell of marijuana emanating from Mr. Le". It was also agreed that on arrest, "There was no note of Mr. Le wearing a white ball cap."

ANALYSIS

[10] There is no question that Van Van Le was in physical possession of a quantity of wet marijuana totalling 14.9 kilograms. He may have not known exactly what type of biological material was in the garbage bags, clones or leaves, stems, clippings, etc., but he contends that it was all slated for the dump as refuse, to be abandoned and destroyed. The questions to be decided are therefore:

(1) On April 3rd, 2013 was Mr. Le producing marijuana either as a principal or party? Production is defined in section 2 of the CDSA as "cultivating, propagating or harvesting" marijuana contrary to section 7 of the CDSA.

(2) Additionally, was Mr. Le in possession of marijuana for the purpose of trafficking?

(3) If he is guilty of producing marijuana either as a principal or party to the offence, is he guilty of theft under $5,000 in respect to the alleged theft of Hydro by way of the bypass in the attic?

THE LAW OF PRODUCTION

[11] The first issue is whether the act of removing soil and some quantity of wet cannabis from the grow operation at 65 Craydon Avenue, and perhaps elsewhere, constituted cultivating, propagating, or harvesting marijuana either as a principal or a party to the offence. After careful review of the case law, I have concluded that the observed act of removing soil and some cannabis material from the residence does not constitute any degree of cultivation without some overt set of assistance by him in the actual growing or harvesting of the plants. The often adopted definition of the verb "cultivate" in the Shorter Oxford English dictionary defines "cultivate" as:

"To bestow labour and attention upon land in order to the raising of crops: to till; to improve and render fertile by husbandry."

[12] In fact, the Ontario Court of Appeal adopted a fairly narrow and restricted meaning of the word "cultivate" in R. v. Gavreau (1982), 65 C.C.C. (2d) 316 (Ont. CA). The Court held that marijuana drying in a greenhouse for two or three weeks fell outside the definition of cultivation. The word "cultivate" was restricted "to activities associated with the growing of plants," hereby excluding any "processing of a plant after harvest." I am therefore of the view that the removal of soil and wet cannabis material does not fall within the CDSA definition of production.

IN THIS CONTEXT CAN A REASONABLE INFERENCE STILL BE DRAWN OF PRODUCTION?

[13] Crown counsel argues that the fact Mr. Le is, by his own admission, an experienced cannabis grower, and is on the premises for at least 4 hours on April 3rd, 2013, and the fact he assisted in removing some biological material supports an irresistible inference that he was participating in the cultivation exercise being carried on at the premises. By agreement of counsel, he removed at least 3 bags of marijuana clones from the premises, along with soil (even though he professed a lack of awareness of the three bags of clones in the material removed), and smelled of marijuana upon his arrest.

[14] It is important to have regard to all the circumstances viewed cumulatively, as to whether his conduct had a "participant" character and was unlike that of a mere observer on the day in question. This case is distinguishable from the facts in R. v. Nguyen [2006] O.J. No. 3449 (Ont. C.A.), a case where 733 marijuana plants in various stages of growth were found in a house in which the accused was observed for 40 minutes four days before the execution of the search warrant. The house was being used for the sole purpose of producing marijuana. The Court concluded that there was no evidence that could support a finding that the accused was present at the property for any other purpose than the care of the plants. In the instant case, it is just as consistent with the evidence that Van Van Le was at 65 Craydon to visit his girlfriend, and while visiting he observed what was taking place on the premises and watched television, as he stated in his evidence. He testified he had worked at his own licensed grow operation earlier that day and was on the way to the dump with 25 to 30 garbage bags of soil, leaves, stems and clippings from his own plants. Detective Constable Huber can only say that she saw an Asian male move "more than 3 garbage bags and load them into the van." The Agreed Statement establishes that 30 to 40 black garbage bags were found in the van when he was arrested. It is entirely consistent with the evidence that Mr. Le had a considerable number of garbage bags of agricultural material in his van when he stopped at 65 Craydon. The point to be made is that he was never observed at 65 Craydon in the months before the date of the search, he had his own licensed grow operation, and there is no doubt that his girlfriend was on the premises during the period of time he was observed in the house. It is not a case of there being no other explanation for his presence on the premises than caring for the plants under cultivation, as was the case in R.v. Nguyen, supra.

[15] Whether or not I believe the defendant's evidence that he was not previously aware of the marijuana production taking place on the premises, his presence at the house could not, absent an assumption of facts not proven, support a rational and logical inference of cultivation, from the established circumstantial evidence even after weighing the evidence to a limited degree. (See R. v. Arcari, 2001 SCC 54, [2001] 2 S.C.R. 828 (S.C.C.)). I have taken into account that Mr. Le smelled of marijuana on arrest. The evidence was, however, that D.C. Huber agreed that after spending time in a marijuana grow-op, the smell of fresh marijuana "lingers on clothes until you wash them". In my view, the gap between the inference that as an accomplished cannabis grower he would have an abiding interest in this operation and the further inference that he would probably have been helping, advising, and participating in the operation on April 3rd, 2013 can only be bridged by evidence. A trier of fact may assess the evidence in light of common sense and human experience but neither is any substitute for evidence. (See R. v. Huynh, [2005], 200 C.C.C. (3d) 305 (Ont. C.A.)). Van Van Le had no key to the premises and there was no document on the property referable to him. There was no evidence of what he did while in the house during the period of time he was there, nor is there any evidence he exercised any control over the house as an owner, lessee or otherwise: R.v. Doan [2011] O.J. No. 4321 (Ont. C.A.). In the instant case, it is entirely consistent with the evidence that Mr. Le was on the premises for about four hours during which he merely observed the production of cannabis and then agreed to take some additional refuse to the dump or remove it for some other purpose. It would be unlikely that D.C. Huber would fail to remember seeing an Asian male place the entire load of 30 to 40 garbage bags in the van, so I will make the common sense inference that he arrived with some grow operation bio-material in his vehicle. In the result, I am not satisfied beyond a reasonable doubt that the guilt of Mr. Le on the production charge is the only rational inference to be drawn from the proven facts: R.v. Cooper (1977), 34 C.C.C. (2d) 18 (S.C.C.); R. v. Griffin (2009) 2009 SCC 28, 244 C.C.C. (3d) 289 S.C.C.).

THE THEFT UNDER CHARGE

[16] It necessarily follows that if Mr. Le's can't be convicted of the production charge, the conclusion that necessarily follows is that he cannot be found to have had any knowledge or control over the Hydro by-pass in the attic of the Craydon address. As well, even if that hurdle were somehow overcome, I am not satisfied there is any evidence the by-pass was ever working and resulted in any losses to Toronto Hydro given the complaint about excessive hydro usage (although I suppose he could be guilty of attempt theft if there were any evidence of knowledge and control of the bypass). As well, there was no evidence he had seen the bypass or was aware of its existence in the attic of the house. (See R. v. Lin [2008] O.J. No. 554 (Ont. S.C.)). Van Van Le is therefore found not guilty of the theft under (hydro usage) charge.

THE POSSESSION FOR THE PURPOSE CHARGE

[17] As with all witnesses I am entitled to believe all, part of none of a particular witness's testimony. There is much of Mr. Le's evidence I do not find credible:

(1) Given the powerful odour that clings to anyone spending any amount of time in a grow operation, much less working on the product in that operation, it is inconceivable that Mr. Le would not have known his girlfriend Thao Do worked in a grow operation or that she would not know he had a medical authorization to produce and store marijuana.

(2) It is equally implausible that Mr. Le could have been in a relationship with Thao Do for two to three years without knowing where she lived with her children when she was not staying at his place ("I did not know much about her. I did not want to ask"). This position, in my view, is not consistent with human experience.

(3) Van Van Le's evidence was inconsistent as well. He first testified he came to 65 Craydon to help clean at his girlfriend's request. Then he testified he was asked by her to move some garbage. He was asked: "Did she tell you what it was and where it was going? He answered "No". He was later asked, "When you took the bags, did you ask Miss Do if there was any marijuana in the bags?" He said: "I did ask and she said it was only soil".

(4) I do not accept Mr. Le's evidence that Chia Luong loaded the van at 65 Craydon wearing a white ball cap. D.C. Huber was positive the person wearing the white cap loaded the van and drove away. The fact that there is no note of Mr. Le wearing a white cap on arrest may mean nothing more than the cap was removed when he began to drive. I note that no questions were ever asked about what Chia Luong was wearing upon arrest.

[18] The questions for consideration are whether, (in accordance with step 2 in R. v. W. (D.), [1991] 1 S.C.R. 742 S.C.C.) − if I do not believe the testimony of the defendant, am I left in reasonable doubt by it and even if not left in doubt by the evidence, am I convinced beyond a reasonable doubt of the guilt of the defendant on the basis of the balance of the evidence which I do accept? (Step 3 – R. v. W.(D.)).

[19] Counsel have agreed that Mr. Le was in physical possession of 14.9 kilograms of wet marijuana that he was transporting in his van. Section 2 of the CDSA defines trafficking to mean "selling, administering, giving, transferring, sending or delivering of a prohibited substance or an offer to do so." To constitute trafficking, the concept of transporting or delivering of a drug contemplates movement of the substance for the purpose of promoting its distribution to another person. There is no evidence Van Van Le intended to transport, sell, give, send, transfer, or deliver the bulk wet marijuana to any other person or persons. The Ontario Court of Appeal in R. v. Oakes (1983), 2 C.C.C. (3d) 339, affirmed by the Supreme Court of Canada , [1986] 1 SCR 103 pointed out that:

In cases where narcotics are possessed for the purpose of trafficking, the quantity is usually such as to indicate that the possession of the drug is not for personal use. Frequently (as in Turner, supra) the drugs are packaged in such a way as to indicate they are intended to be distributed. Commonly, where substantial quantities of a narcotic are found in the possession of an accused, other indicia of trafficking are also found, such as packaging material, bags, scales and records. (At page 367).

[20] In the instant case there was no evidence of drug use paraphernalia of any kind and no expert evidence as to the value to be attributed to 30 to 40 garbage bags of wet marijuana weighing 14.9 kgs., included in which were 3 garbage bags of clones or small seedlings. I have received no evidence whatsoever as to whether this bulk wet marijuana could be reused or recycled into any street use or production scheme. In terms of packaging, it was after all, in garbage bags along with soil and other refuse and in a "wet" state and it may well have had no value. It is not clear whether any part of a clone could be smoked or replanted after being transported in a garbage bag. In fact there is no evidence as to the weight of the water in the garbage bags. Common sense and logic would suggest that if the 14.9 kilograms of wet cannabis in the form of soil, leaves, stems, clones and clippings were dried, even if it were usable, it would represent only a fraction of the weight of bio-material being transported by Mr. Le.

[21] The key piece of evidence that may have informed the question of "purpose" was the destination of the van. The only chance of solving this mystery was regrettably lost in the decision to arrest him rather than follow him to see where he was taking the contents of the van. There are cases that illustrate the principle that inferences of possession for the purpose can arise from the existence of a large quantity of drugs. That is the inference the Crown suggests should be drawn in this case based the case authorities. (See for example: R. v. L'Huillier where the Court concluded: "In my view, when one considers all the evidence before me, the value of the product, the quantity of the product and its quality, it was held for a commercial purpose.") In my opinion, would be a reasonable inference to draw if the bulk wet marijuana was proven to have value and to be usable in some fashion, but in this case the plant material was packaged in garbage bags, with soil, stems, clones and cuttings in a wet state. Even if I disbelieve the defendant's evidence entirely, there is a rational inference available to be drawn from the evidence I have accepted to the effect that − this was a vanload of organic material that he was keeping to use in his own licensed grow operation. Consequently, I am not satisfied beyond a reasonable doubt that the guilt of Mr. Le on the possession for the purpose charge is the only rational inference to be drawn from the proven facts: R. v. Cooper, supra; R. v. Griffin, supra, S.C.C.

THE CASE FOR POSSESSION

[22] I have indicated that Mr. Le has not testified in a credible and straightforward manner. The question remains to be considered in the context of the evidence as a whole, was it his intention to destroy any and all value in the contents of his van by dumping it, notwithstanding the fact he was in physical possession of cannabis? In other words, even if I disbelieve his evidence, might it reasonably be true and thereby raise a reasonable doubt on the basis of authorities such as R.v. Christie (1998), 41 C.C.C. (2d) 282 NBCA, R. v. York (2005) 2005 BCCA 74, 193 C.C.C. (3d) 331 BCCA, R.v. Lukas (2006) 2006 ONCJ 219, O.J. No. 2405 (Ont C.J.) which have all held that an intention to destroy drugs is a defence to possession. Might it have reasonably been true that he was driving the load of material on his van to a location where he could dump it? First, it must be noted that while the onus of proof always remains on the prosecution, there is an evidentiary burden on the defence to satisfy the Court that there is a basis in reality to factually support the defence of "destruction" that has been put forward in this case.

[23] Having carefully considered his evidence of some arrangement he supposedly had with a garden supply store, in respect to which he didn't know the name or address but then hesitatingly produced the name "Ponos", at which place he was supposed to be dumping a van load of dirt and the other plant refuse, far from being persuaded this evidence might reasonably been true, I am left in a state of disbelief. If he was indeed transporting a van load of bio-material for disposal, given the quantity and weight (30-40 garbage bags), I would have thought he would know the name and location of the store, his contact person there, and that he could readily describe his business arrangement and that the establishment held a licence to receive potentially hazardous material and that he would have photos, brochures, documentation, if not witnesses, to corroborate or confirm his stated purpose. Clearly the store, if it existed, would not be prepared to accept unlimited volumes of waste material, especially in a downtown urban area, even if his contention were true, and he would know what the cost to dump this volume of material was in advance of loading the van. While there is no onus on Mr. Le to prove anything, I have concluded that his evidence about a dumping scenario in the vicinity of Jane Street and Lawrence Avenue West is not believable and no reasonable doubt arises on this evidence and I find that on the evidence I accept the charge of possession has been proven beyond a reasonable doubt.

CONCLUSION

[24] In the result, having rejected the defence of destruction as having no air of reality, I am satisfied beyond a reasonable doubt on the circumstantial evidence that the defendant had knowledge and control of the cannabis material on his van and was therefore in possession of 14.9 kgs. of wet marijuana on April 3rd, 2013. As I have found, the transporting to or the giving of the plant material to someone else was not the only rational inference to be drawn from the proven facts. Mr. Van Van Le did testify that it was possible to reuse the soil more than once in the grow operation process. In accordance with R. v. Cooper, supra, it was an equally rational inference to be drawn, if not a probability, that the clones were destined for his own current or future grow operation whether or not it was actually in existence on April 13th, 2013.

[25] In all circumstances, I am satisfied that no reasonable doubt arises from the evidence, which I accept, and I find that the included offence of possession of marijuana would have been proven beyond a reasonable doubt but for the remaining issue to be determined as to whether he is exempt from criminal liability by reason of his Health Canada authorization to lawfully possess marijuana for medical purposes.

THE HEALTH CANADA EXEMPTION

[26] In an unusual turn of events, on May 15th, 2015 I was presented with an Agreed Statement of Fact in which counsel stated that after consulting multiple experts as to the dry weight of 14.9 kilograms of wet marijuana, they jointly concluded that the dry weight may have been within the scope of the defendant's medical marijuana licence (which permitted him to store up to 3960 grams of dry marijuana) and as the wet marijuana found in his van has now been destroyed, it was therefore conceded that the marijuana possessed in the van may have been authorized by his licence. The Agreed Statement is reproduced below as Appendix A. On the basis of this agreement I therefore conclude that the remaining charge of possession of marijuana has not been proven to the requisite criminal law standard as a result of the defendant's Health Canada Exemption for medical purposes and consequently the one remaining charge of possession cannabis is dismissed.

P. Harris J.

May 15, 2015

APPENDIX A