Ontario Court of Justice
Old City Hall - Toronto
Parties
Between: Her Majesty the Queen
And: Arin Hwang and Van Da Do
Counsel and Hearing
For the Crown: J. Gevikoglu
For the Defendant Arin Hwang: K. Schofield
For the Defendant Van Da Do: A. Trica
Heard: December 15-16, 2015 and April 11-12, 2016
Reasons for Judgement
MELVYN GREEN, J.:
A. INTRODUCTION
[1] There was a marijuana "grow op" in the basement of a detached home at 50 Ravenscrest Drive in the City of Toronto. Members of the Toronto Police Service (TPS) discovered it when they executed a search warrant at the premises on June 14, 2014. Upstairs, in the main floor living quarters, the police also found a hydro meter "bypass" and approximately seven ounces of dry marijuana in the side pocket of a suitcase in a bedroom.
[2] Arin Hwang, one of the two defendants, was in a car in the driveway when the TPS executed the warrant. He was charged with producing marijuana, with possession for the purpose of trafficking of the marijuana located in the basement, with possession of the marijuana found in the pouch of the suitcase, and, as relates to the hydro bypass, with theft of electricity of a value exceeding five thousand dollars. The second defendant, Van Da Do, was arrested during a routine traffic stop about two weeks later. He is alleged to have been surveilled entering the target residence in late-May 2014. Like Hwang, he was charged with possession of the basement marijuana for the purpose of trafficking, production of the same marijuana, and theft of electricity. He was not charged with possession of the marijuana located in the suitcase. He was charged, however, with possession of the proceeds of crime as a result of money being found in his possession at the time of his arrest. At the invitation of the Crown, I acquitted the defendant Do of this last charge at the close of the prosecution's case.
[3] Each of the defendants is charged on a separate Information. On consent, their trials were conducted as a single proceeding following their arraignments. (See R. v. Clunas, [1992] 1 S.C.R. 595; R. v. Sciascia, 2016 ONCA 411.) The Crown called seven witnesses: three police officers involved in the investigation, the officer who later arrested the defendant Do, the owner of the residence (Vincento Piccolo), a man who was present at the time the search warrant was executed (Stephen Wong), and, finally, an expert witness in regard to such matters as illicit marijuana cultivation and commercial trafficking. Crown counsel ultimately abandoned any reliance on the expert's evidence. This body of collective testimony was supplemented by various defence concessions and agreed statements of fact. The defence called no evidence.
[4] As always in criminal trials, no finding of guilt may be made respecting any count or defendant unless and until the Crown establishes both the commission of the offence charged and the named defendant's participation in that offence to the requisite standard of proof beyond reasonable doubt.
B. EVIDENCE
(a) Introduction
[5] Jurisdiction and the particularized dates of the alleged offences are conceded by the defence, as is the fact that the dried substance found in the suitcase pocket and the cultivated plants located in the basement are cannabis (marijuana). If possession of the basement marijuana is established, the defence does not dispute that such possession was for the purpose of trafficking. By way of an Agreed Statement of Fact, it is acknowledged that inquiries by Toronto Hydro confirmed that the hydro consumption at 50 Ravenscrest during the course of the police investigation was well in excess of the wattage recorded on the dwelling's hydro meter. This investigation confirmed the existence of a hydro bypass at that address. There is no evidence of any association or communication between the defendants Hwang and Do or that they otherwise knew or even knew of each other.
(b) The House at 50 Ravenscrest
[6] 50 Ravenscrest Drive is the municipal address of the house in which the grow op was found. It is a detached bungalow with an attached garage in a quiet residential part of Toronto. Unlike neighbouring homes, the house appeared unkempt. The windows were closed and covered with drapes that were also closed. On entering the front door, a set of stairs heading one direction descends to the basement. A few steps in the opposite direction ascend to the main level containing the home's living area: a kitchen, two bathrooms, three bedrooms and a family room. The basement, as described by the police, included two rooms containing marijuana plants at various stages of cultivation. Lights were suspended over at least some of the plants, and soil, water, ballasts, timers, fans, fertilizer, agricultural nutrients and ventilation equipment (all paraphernalia notoriously associated with the indoor cultivation of marijuana) were kept in adjoining basement rooms.
[7] Vincento Piccolo, the owner of the property at 50 Ravenscrest, lived in a second home on the same block. By way of a residential lease, he rented the house at 50 Ravenscrest to Ginelle Davey and Gabriel Hart from May 1, 2011 to April 3, 2012. Ms. Davey later gave notice that she was subletting the home to a friend, Julie Waite, and, in mid-2013, Davey left and Waite's husband, Jeremy Evans, moved in. Piccolo visited the main floor at 50 Ravenscrest that September. He did not go down to the basement. He did not testify to detecting any unusual odours.
[8] Piccolo did not revisit the house until June 14, 2014, after the police informed him that they had located a grow op in its basement. He had no prior knowledge of the grow op. The Ravenscrest tenants paid the rent in cash. They were also responsible for the hydro charges, which they paid directly. Piccolo had never authorized any renovations or the installation of a hydro bypass at 50 Ravenscrest.
(c) The Police Surveillance
[9] Members of the TPS drug squad's "clandestine drug lab unit" conducted a total of about 16 hours of surveillance at 50 Ravenscrest over the course of eight days between May 13 and June 13, 2014. They observed a man they identified as the defendant Do enter the residence on one occasion. The defendant Hwang was first observed minutes before the search warrant was executed, seated behind the wheel of one of two cars in the driveway.
[10] One member of the surveillance team, Det. Cst. David So, was in the vicinity for about two hours mid-day on May 13th. The house was dark and there were no sign of occupants, visitors or vehicles. Based on years of professional experience, So claimed he detected an odour of growing marijuana when he walked past the end of the driveway.
[11] So re-attended around 9pm on May 21st. P.C. Stephane Charron was part of the surveillance team that evening. Again, the house appeared vacant. About an hour later, a silver-coloured Dodge Caravan drove into the driveway of 50 Ravenscrest. An Asian man got out of the vehicle. He appeared to use a key to enter the front door of the dark house. Interior lights were then activated, although the officers could not tell if this included the basement area. Around 11pm, the same man came out of the house and sat in a chair in the driveway near the front door. The interior lighting, cast from behind the man, helped illuminate him. He appeared, according to one officer, to be talking on his cell phone. So testified to being 15-20 feet distant (later qualified as "approximately" and then expanded to 25-30 feet in cross-examination) as he observed the man. Charron said he was 60-80 feet away. Both officers described the man as between 5'6" and 5'8" and between 35 and 40 with black hair. They also agreed that they may well have discussed the man's physical appearance with each other before they drafted their notes of the evening's events. The officers left the area at 11:10pm.
[12] So conducted surveillance for about one and a half hours the next evening, May 22nd. The interior lights were illuminated and the same Dodge Caravan was parked in the driveway. He did not see anyone that evening. The Dodge Caravan was no longer in the driveway at 50 Ravenscrest when So drove by on the afternoon of May 23rd or when he and Charron conducted surveillance for about two hours on the evening of May 26th. The house appeared vacant on these dates and when So next surveilled the premises, for four hours on June 5th. So did not testify to detecting the odour of marijuana during any of these visits or during his earlier attendance on May 21st. Charron, however, said he smelled marijuana on May 21st.
[13] So next returned for several hours on the evenings of June 11th and 13th. He noticed some interior lighting on the first of these occasions, but did not see any persons or vehicles either night. He could detect a faint odour of growing marijuana from the end of the driveway at 50 Ravenscrest on the 11th, but he reported nothing similar on the 13th – the night preceding the execution of the search warrant.
[14] On May 22nd, the day after he and Charron had seen the man exit the Dodge Caravan and enter the house, D/C So confirmed through the Ministry of Transport (MOT) that the surveilled van was registered to the defendant Do. So testified that he likely viewed an MOT photo of Do on his computer at the same time he made his MOT inquiries respecting the van and had then identified the picture as that of the man he and Charron had seen at 50 Ravenscrest the night before. The following day, May 23rd, So collected the MOT documentation and a hardcopy of the photo.
[15] So had participated in the conduct of between 20 and 50 photo line-ups in the course of his professional career. He did not prepare or request that another officer prepare a photo line-up for Charron. Rather, he showed the single photo of Do to Charron that same day. The two officers, as put by Charron, agreed that it looked like the man they saw at the Ravenscrest house on the evening of May 21st. A year and a half later, in the course of this trial, both So and Charron dock-identified the defendant Do as the same man they had seen at the house. Other than both being of Asian descent, the physical dimensions and facial features of the two defendants are conspicuously different.
[16] D/C So was the affiant for the Information to Obtain (ITO) that underlay the search warrant executed on June 14th. His detailing in the ITO of the investigatory chronology leading to his identification of the defendant Do as the man seen at 50 Ravenscrest on Wednesday, May 21st differs materially from that first tendered through his testimony. The ITO and So's testimony are consistent in asserting that he conducted MOT database checks on the van's plate on Thursday, May 22nd. So then learned that the vehicle was registered to Do. As he swore in the ITO, So then made police database inquiries respecting Do and learned that he was an uncharged suspect in a residential grow operation in Peel Region. As sequenced in the ITO, the next morning, May 23rd, So faxed the MOT for Do's driver's licence photograph and collected a physical copy of the photograph later the same day. In cross-examination, So agreed that neither the ITO or his notes record his looking at a photograph of Do prior to picking up a copy at the MOT on Friday, May 23rd. So also agreed that neither the ITO or his notes include any mention of his identifying Do as the man seen at the house until May 23rd. As So swore in the ITO respecting the events of May 23rd: "I viewed the photo and I believe it to be the male Asian that I had seen at 50 Ravenscrest Drive on Wednesday, May 21st, 2014".
[17] Summarized, in his ITO swore he identified Do on May 23rd. This was after he obtained a hardcopy of Do's MOT photo. It was also after he had learned, on May 22nd, that Do was the subject of a Peel police grow op investigation. In court, So testified to identifying Do on May 22nd and made no mention whatsoever of the Peel investigation until the matter was pressed in cross-examination.
(d) The Execution of the Search Warrant
[18] The TPS conducted a warrant-authorized search at 50 Ravenscrest in the early afternoon of June 14, 2014. The precise timing of the warrant's execution was dictated by surveillance of three men seen leaving the premises just before 1pm. There were two cars in the driveway, a blue Mazda and, behind it, an Acura. One man was in the Mazda. A second was near the end of the driveway. And the third was near the front door to the house. The police executing the warrant, including D/C So, had never previously seen any of the three men. All three were arrested and charged with marijuana production. Charges were later dropped against two of the men: Marcus Tsao and Steven Wong. The third man is the defendant Arin Hwang. He was trying to back up the Mazda at the time he was apprehended by the police. No evidence suggest, nor does Crown counsel allege, that Hwang's interrupted departure was in any way related to counter-surveillance or his efforts to evade the then imminent execution of the search warrant.
[19] D/C So testified to an obvious odour of fresh-grown marijuana on entering the front door, particularly as he approached the basement – an area that appeared dedicated to the cultivation of marijuana. One basement room contained six-inch high clones and a second had many larger plants. In total, some 172 plants (having a wet weight of 13 kilograms) were seized. As noted earlier, these two rooms were equipped with artificial lighting and ventilation. Adjoining rooms contained agricultural chemicals, gardening instruments and other accoutrements of marijuana production. There was no physical evidence suggesting that mature marijuana was harvested, dried or packaged on the premises. Nor was there any evidence of scales or other commercial trafficking paraphernalia.
[20] According to D/C So, the upstairs living area of the house was sparsely furnished and poorly maintained. There were bicycles and three large garbage bags of children's clothing in the family room and a tricycle in the kitchen. There was some drywall patchwork in the family room near the exterior meter behind which a hydro bypass (intended to evade monitoring of electricity consumption) had been installed. A hallway smoke detector was inoperable; no battery was installed.
[21] There was a bed in one bedroom. Lighting shields and unconnected pipes were found under a bedspread or duvet in a second bedroom. Ballast and piping in this room's closet were obscured by a bedspread completely covering the closet. A common or shared bathroom contained some toiletries. Only the master bedroom appeared to have been occupied. The en suite bathroom had damaged dry wall that disclosed piping. The bedroom itself contained bags of unidentified men's clothing. Two notebooks that appeared to contain debt lists were found in a black garbage bag near a desk; there is otherwise no evidence of the notebooks' provenance or ownership. Five cell phones were also found throughout the room. Again, no evidence was led of their source or whether they were activated or otherwise in working order.
[22] A blue suitcase sat at the end of the bed in the same bedroom. Its exterior pocket held three Ziploc bags containing a total of seven ounces of dry marijuana. A number of documents bearing the defendant Hwang's name were found in the suitcase itself, including a packing slip, a Rogers bill, a student loan letter and banking records. Hwang's social insurance card, provincial health card and passport were found in a nearby shoebox in the same bedroom. None of the Hwang-related documents included a Ravenscrest address. No identification or any other documents were located bearing the defendant Do's name.
[23] In chief, D/C So repeatedly testified to seizing "two" small, generic keys from the defendant Hwang's pocket upon his arrest. The two keys were on a key ring that contained no other keys or attachments. So tested the keys: one opened the front door and the second a door to the basement. Both doors were unlocked when So first reached them on June 24th.
[24] In cross-examination So acknowledged that he "misspoke" when he earlier testified to they're being only two keys. So had not counted the keys when he seized them. He had, however, counted them when submitting his police property report: six keys on three rings, all of which were attached to a fourth ring. These, he now said – the six keys, as ringed – were the entirety, as originally configured, of what he had seized from Hwang's pocket. Later, So allowed the possibility that he or another officer had returned some keys sized from Hwang to the defendant before the property receipt was completed. He also allowed that the ring containing the two house keys appeared to have been distorted, consistent with they have been pried apart. He denied, however, any recall of seeing the two house keys, or any other keys, on a ledge just inside the front door of the house.
[25] No mail addressed to either of the defendants was located. However, the mailbox did contain a voter's card in Jeremy Evans' name and a hydro bill addressed to Ginelle Daley who remained the hydro account holder throughout the period of the investigation. Although Evans and Daley were "persons of interest" to the police, they were never arrested and efforts to locate them proved unavailing.
[26] Jeremy Evans was also the named holder of two medical marijuana licences found at the house. One authorized the possession of up 900 grams of dried marijuana for personal medical purposes. The second authorized indoor production of up to 146 marijuana plants and storage of up to 6,570 grams (approximately 6.5 kilograms) of marijuana for personal use. Both licences expired on March 31, 2014. The authorized production and storage site was an address in Adjala, Ontario.
(e) The Expert Evidence
[27] Tony Canepa, a retired TPS drug enforcement officer, testified as an expert witness on marijuana production, pricing, and related facets of the marijuana trade. His qualifications were conceded. In view, at least in part, of various defense concessions, Crown counsel ultimately placed no reliance on his evidence. I find that Canepa's testimony was tendentious, partial to the prosecution and generally presumptive of guilt – attributes that are incompatible with the responsibilities of a qualified expert witness: see Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, esp. para. 37. Nonetheless, there are undisputed aspects of his evidence that are of value to the resolution of at least some of the matters at issue.
[28] Upon his review of the Crown brief, Canepa concluded that the grow op at 50 Ravenscrest was a commercial operation. However, the absence of any plant drying facilities at the residence led him to opine that, upon harvest, the marijuana cultivated in the basement would be transported to a separate facility for commercial preparation, such as drying and packaging. As a result, he agreed that that there was no necessary relationship between the seven ounces of dry marijuana found in the suitcase pouch and the "wet" or vegetative marijuana found growing in the basement. As to the monies seized from the defendant Do on his arrest, Canepa was unable to express an expert opinion as to whether they were the proceeds of crime.
(f) Stephen Wong's Account
[29] Stephen Wong was one of the three men arrested at 50 Ravenscrest on June 14, 2014. He had known the defendant Hwang since high school and previously roomed with him at the University of Waterloo. He met Marcus Tsao, the third man arrested that day, through Hwang. Wong had left university to work in Toronto and Tsao lived in Ottawa, but they stayed in touch. As noted, the Crown withdrew the charges against Wong and Tsao.
[30] Wong, the defendant Hwang and a man named Kevin went to a restaurant in Toronto on the evening of June 13, 2014. Kevin's girlfriend Paula worked at the restaurant. Wong had a couple of beers and few shots over dinner. All four left about 1am and met up with Tsao at a pizza joint. Wong was driving his Acura. The defendant Hwang was driving a sedan. Paula had her own car.
[31] At Hwang's suggestion, Wong and Tsao followed Hwang to a place he had been staying for further drinks. The three men arrived at the house at about 2am on June 14th. Wong parked his Acura behind Hwang's car and carried in a bottle of liquor. There was a second bottle in the house. They drank shots, smoked cigarettes and talked. Wong passed out on a couch in the living room within an hour of his arrival. Hwang and Tsao were still awake.
[32] Hwang woke up Wong about 11am that morning. He told Wong that he had to leave and asked Wong to move his car so he could get out of the driveway. Wong could not find the keys to his Acura. Hwang was in a rush so he told Wong and Tsao that he would leave them the house keys; they were to lock up the house when they left. Hwang left the keys on a ledge just inside the front door, by a railing near the stairs that ascended to the main floor. There were two keys and they were separated: no loop; no chain; no fob.
[33] Tsao was waiting to be picked up, so it fell to Wong to lock the doors on finding his car keys. He could not recall where he was to leave the house keys other than outside the residence. Wong was arrested as he tried to help Hwang maneuver his car around the Acura. Later, after he was released on bail, Wong returned to the house, located his keys and retrieved his car.
[34] Wong understood that Hwang was still living in Waterloo in mid-June 2014, that he hoped to move back to Toronto, and that he was storing his stuff at the house where he, Wong and Tsao were arrested on the June 14th weekend. Wong did not see anyone go to the basement of the house. He did not notice any unusual odours. He did not know the house was being used to grow marijuana. None of the parties directly challenged Wong's recall.
(g) The Defendant Do's Arrest
[35] The defendant Do was pulled over for speeding in Mississauga on June 27, 2014, approximately two weeks after the search warrant was executed at 50 Ravenscrest. As a result of a routine police computer check, Do was arrested on an outstanding warrant for offences related to the 50 Ravenscrest grow op investigation. About $500 was located in his pocket and a further $3,000 was found in a black bag seized from his car. According to D/C So, two notebooks found among Do's property appeared to include references to several strains of marijuana, a debt list and a generic diagram of a grow op.
C. ANALYSIS
(a) The Legal Issues: An Introduction
[36] An analysis of the integrity of the charges before me requires application, in particular, of the law governing "possession" and that pertaining to the assessment of "circumstantial evidence". There is a further issue, one exclusive to the defendant Do, involving the question of whether the evidence adequately supports a factual finding that he is the man seen entering 50 Ravenscrest on the evening of May 21, 2014. If not, there is no other evidence that links him to the premises or the drugs found there. Accordingly, I first address this threshold issue as Do cannot be found culpable of any of the offences of which he remains charged if he is not satisfactorily identified as the person who attended the house that evening.
(b) The Identification Evidence
(i) Introduction
[37] The Crown relies on two complimentary strands of evidence to identify the defendant Do as man seen entering 50 Ravenscrest on May 21st. There is, first, the direct evidence of the two police officers who surveilled the property that evening and later identified both an MOT photograph of Do and the defendant Do himself in court as the man they observed that evening. Second, there is the circumstantial evidence that links the defendant Do, by way of MOT registration, to the van driven to 50 Ravenscrest on May 21st.
[38] Eyewitness identification of unfamiliar persons, particularly under adverse conditions, is notoriously prone to error. Indeed, the Court of Appeal has characterized "[m]istaken eyewitness identification [as] the overwhelming factor leading to wrongful convictions": R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 29. The risk of miscarriage of justice premised on misidentification rests primarily on reliability concerns. It persists no matter how honest a witness or how strong his or her confidence level. This does not mean, of course, that all eyewitness identification of strangers is worthless. It does, however, underscore the need for close scrutiny of such evidence and sensitivity to the factors that may compromise its reliability and, as well, highlights the value of independent confirmatory evidence, where available. The underlying concerns are well detailed in former Supreme Court Justice Peter DeC. Cory's report of the inquiry into the prosecution of Thomas Sophonow, a man twice wrongly convicted of murder primarily on the basis of the mistaken identification evidence of five independent eyewitnesses: The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (Winnipeg: Manitoba Justice, 2001). The need for persistent vigilance is evocatively captured in Doherty J.A.'s famous dictum, "[t]he spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law": R. v. Quercia, 60 C.C.C. (3d) 380, at para. 5 (Ont. C.A.).
(ii) Eyewitness Evidence of Identification
[39] As regards the eyewitness identification, the immediate case is one in which it is inherently dangerous to rely on that evidence alone to find that the man who attended 50 Ravenscrest on May 21st was the defendant Do.
[40] My assessment of the frailties and deficits of the eyewitness identification begins with the ambient circumstances or what are sometime called "estimator variables", including factors such as lighting conditions, distance, subject familiarity, event resonance and various personal faculties that affect the information acquisition phase of any identification. I then consider the evidence bearing on what social scientists frequently characterize as "system variables", those factors affecting the retrieval, comparison and matching stages of an identification process and, ultimately, the accuracy of any resulting identification. The rigour of system-related variables largely involves the application of sound experimental methodology to the design and conduct of police line-ups. Accordingly, systemic variables are factors over which the criminal justice system, and particularly the police, have hands-on control. As put by the renowned forensic psychologists G.L. Wells and E.A. Olson:
The distinction between system variables and estimator variables is consequential in several respects. Whereas estimator variables [when appreciated by a trier] can at best increase the probability that the criminal justice system can sort accurate from inaccurate eyewitness identifications, system variables can help prevent inaccurate identifications from occurring in the first place.
("Eyewitness Testimony", Annu. Rev. Psychol. 2003. 54:277-95, at p. 285.) Put simply, estimator variables chiefly concern the physical and psychological circumstances that determine the quality of the information perceived during and remembered after the critical observational window while systemic variables address those factors that define the reliability of the process by which the subject of any observation is later forensically elevated into a "that is the man" moment of identification.
[41] History, social science research and settled jurisprudence have long cautioned triers of fact that adverse conditions at the first stage or deficits in procedural rigour at the second jeopardize the accuracy of any resulting identification and, accordingly, the integrity of any conviction that may follow. As said by the Court of Appeal in R. v. Miaponoose, 110 C.C.C. (3d) 445, at para. 9 (citing the Law Reform Commission of Canada Study Paper (1983) on "Pretrial Eyewitness Identification Procedures", at p. 7),
[T]he need for comprehensive police guidelines is particularly acute in the area of pretrial eyewitness identification procedures, because eyewitness testimony is inherently unreliable.
[42] Here, two officers, So and Charron, testified to observing a man enter the house and then, about an hour later, come out and sit on a chair in the driveway for about ten minutes before they, the officers, left the vicinity. While one of the officers, D/C So, had taken the photos of the house on May 13th and had used a video recorder during the execution of the search warrant on June 14th, no images, either still or video, were captured on May 21st. Nor is there any evidence that either officer utilized image enhancement technology, not even binoculars, during the course of their surveillance of the man that evening.
[43] The officers' window of observation was not "fleeting". Nonetheless, their observational circumstances were far from optimal. Neither had ever previously seen the man. It was after dark, the lighting was poor, and they were at some distance. As the officers testified, there was no street lighting above the man seen by the police and only the back of his head was visible as he entered the house. While each officer testified that the man's features were better illuminated when he sat in the driveway, he remained only backlit, the house's interior lighting radiating toward the rear of the man rather than toward his face. Further, the interior lighting was shaded by curtaining covering all of the house's windows. Further still, the officers were at a considerable distance when they made their observations: one was 60-80 feet away and the second allowed that he was more like 30 feet distant, although latter's estimates tended to expand over the course of his examination. One officer, Charron, could not even recall that the second officer was present until prompted in the course of his examination.
[44] Nor do the officers' physical accounts of the man's appearance inspire confidence. There are no signature or distinguishing elements by way of physical features, clothing or demeanour. Indeed, their descriptions are essentially identical and entirely generic: a black-haired Asian man of between 35 and 40 years of age and about 5'6" to 5'8" tall. D/C So fairly agreed that this description might well match "tens of thousands of persons living in the Greater Toronto Area". Other than "dark", there is no description of the man's clothing. Further, as both officers allowed in their evidence, their individual descriptions of the man – as recorded in their notes and repeated in their testimony – were hardly independent recollections. They appear, rather, to have been mediated by their consulting with each other as to the man's physical appearance before each officer committed his description to his notebook.
[45] The immediate sequence of events following the observations of May 21st raises further concerns about the reliability of the officers' identification of the defendant Do as the man they saw that evening. As detailed earlier, D/C So learned that Do was the registered owner of the vehicle as a result of the MOT inquiries he conducted on May 22nd. So's database searches later the same day revealed that Do was a person of interest in a grow op investigation in Peel Region. When pressed, So testified that he saw a photo of Do and recognized the image as the man he observed at 50 Ravenscrest when he first went to the MOT site on May 22nd and before he learned that Do was a suspect in a generically similar investigation. So's own notes and the ITO he, as affiant, swore in aid of the Ravenscrest search warrant confirm the MOT plate registration information and the police checks on that date. However, neither the notes or the ITO make any mention of seeing a photo of Do until the next day, May 23rd. In addition, So's notes and his sworn ITO do not positively assert So's identification of Do as the man he saw at the house until that same next day, May 23rd – the day after he learned that Do was the subject of a parallel police investigation.
[46] Given the importance to the investigation of identifying the man seen entering the house, So's professional obligation (which he acknowledged) to keep faithful and accurate notes, and his onerous responsibilities as an ITO affiant, I cannot accept So's evidence that he made the critical identification before he learned of the Peel investigation into Do's conduct when that assertion is patently inconsistent, by way of omission and positive assertion, with his prior notes and the sworn statements he tendered to a judicial officer. To be clear: I find that So had already learned that Do was a person of interest to the police in a similar investigation when he identified Do's MOT photograph as an image of the man he had seen at 50 Ravenscrest two days earlier.
[47] The process by which D/C So's escort, PC Charron, came to identify Do is at least equally troubling. Other than So, Charron was the only eyewitness to the events at 50 Ravenscrest on May 21st. The value of So's identification evidence is patently compromised by his exposure to but a single photograph (that generated by his MOT inquiries) and is likely tainted by his prior knowledge that the person photographed (the registered owner of the van) was a suspect in another grow op investigation. Accordingly, Charron's identification of Do has a significant rehabilitative potential. If fairly collected, Charron's evidence as to his identification of the man in the MOT photo as the same man he saw at the house is capable of restoring confidence in So's fragile identification evidence and could thereby independently confirm the correctness of that identification.
[48] This, however, is not what transpired. Indeed, the process by which Charron came to identify Do exposes both a risk of transferred bias and a failure to comply with sanctioned measures intended to mitigate the risk of mistaken identification. Despite his considerable experience in such matters, despite the lack of any articulated or apparent urgency, and despite ample legal precedent and settled police practice, D/C So did not bother to arrange for Charron to participate in a photo line-up in which, among other long-accepted safeguards:
the MOT photo of the defendant Do is one of a balanced, similarly configured array of eight to ten persons with like facial, ethnic and any other distinguishing features;
the officer conducting the procedure is unfamiliar with the case;
the officer conducting the procedure does not know which photos in the array is thought to contain an image of the suspect;
Charron is first advised that the suspect's photo may not be among those displayed;
Charron is requested to provide an assessment of his confidence level upon completing any identification protocol; and
the entire procedure is video-recorded.
D/C So honoured none of these procedural conventions. Based on seeing a single photo (and, in my view, having already been prejudicially influenced by knowing it contained a head shot of a grow op suspect in a neighbouring jurisdiction), So decided that the man in the MOT photo – the defendant Do – was the man he had seen at 50 Ravenscrest. Rather than ask another officer to then conduct a proper line-up with Charron, So himself showed the single photo of Do to Charron. No alternative candidates – "fillers" in the language of standard line-up protocol – were displayed. And even if So had somehow refrained from expressly sharing the information he had gleaned about the Peel police department's interest in the man in the photo (a matter about which no evidence was tendered), it is difficult to imagine that his enthusiasm or at least personal confidence in having made a "match" was not, if only unconsciously, conveyed to Charron.
[49] In effect, Charron's identification of Do, the man in the MOT photo, as the same man he saw at the house some two days earlier was the product of a show-up rather than a line-up. As such its forensic value is severely compromised. No less venerable a criminal jurist than G. Arthur Martin J.A., when speaking for the Court of Appeal in R. v. Todish, 18 C.C.C. (3d) 159, at 162-63, characterized any identification resulting from such process as "virtually worthless". (See also, R. v. Malcolm, 81 C.C.C. (3d) 196 (Ont. C.A.).)
[50] This is hardly new law. Some 70 years ago, in R. v. Smierciak, 87 C.C.C. 175, at p. 177, the Court of Appeal conveyed clear directions as to the police's procedural requirements in generating reliable identification evidence and of the consequences of failing to adhere to these instructions:
The conditions under which an observation is made, the care with which it is made, and the ability of the observer, affect the weight of the evidence. In addition to such matters, and of the utmost importance, is the method used to recall or refresh the recollections of a witness who is to be relied upon to identify a person suspected of wrongdoing or who is under arrest. If a witness has no previous knowledge of the accused person so as to make him familiar with that person's appearance, the greatest care ought to be used to ensure the absolute independence and freedom of judgment of the witness. His recognition ought to proceed without suggestion, assistance or bias created directly or indirectly. Conversely, if the means employed to obtain evidence of identification involve any acts which might reasonably prejudice the accused, the value of the evidence may be partially or wholly destroyed. Anything which tends to convey to a witness that a person is suspected by the authorities, or is charged with an offence, is obviously prejudicial and wrongful. Submitting a prisoner alone for scrutiny after arrest is unfair and unjust. Likewise, permitting a witness to see a single photograph of a suspected person or of a prisoner, after arrest and before scrutiny, can have no other effect, in my opinion, than one of prejudice to such a person. [Emphasis added.]
The Court of Appeal approvingly cited this passage in R. v. Miaponoose, supra, at para. 16, immediately and forcefully adding that,
[I]t is clear that the police also have a duty to ensure the integrity of the identification process. Their role indeed may be most important of all since they are usually in control of the methods chosen to recall or refresh the memory of eyewitnesses. While it may not be possible to improve upon the reliability of a witness's original perception of a person, it is crucial that procedures which tend to minimize the inherent dangers of eyewitness identification evidence be followed as much as possible in any given case. Irreversible prejudice to an accused may flow from the use of inappropriate police procedure and, unless adequately counterbalanced during the course of the judicial process, may result in a serious miscarriage of justice. [Emphasis added.]
See, also, R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), at 249-250.
[51] As is now settled law, the two officers' dock-identification of Do during the course of this trial add nothing of substance to their evidence in this regard. There were only two Asian persons in the courtroom – the two defendants – when So and Charron each pointed to Do as the man they saw at 50 Ravenscrest. The facial features, height, age and physique of the two men are conspicuously different. And, of the two, only Do resembles his MOT photograph. In any event, the Supreme Court, in R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, effectively disposed of the shibboleth that a dock-identifications is of any affirmative value. As explained by the Court of Appeal in R. v. Tebo, 175 C.C.C. (3d) 116, at para. 17, in Hibbert,
The Supreme Court of Canada … re-emphasized that in-dock identification has an "almost total absence of value as reliable positive identification." The only purpose in allowing the evidence to be led is to give the victims or other relevant witnesses an opportunity to say whether or not in their opinion, the accused is the same person they saw at the offence, in order to dispel any adverse inference the jury might draw if the question were not asked, and because there is probative value in the inability of a victim or witness to identify an accused person (para. 49).
[52] This canvass of the physical limitations affecting the police observations, the generic nature of the officers' descriptions, their disregard of their obligation to independently record their descriptions of the suspect, the tainting of So's initial identification of the defendant, the likely contagion of that prejudice to Charron, and the failure to honour any of the procedural safeguards prudence and the law dictate to protect against the notorious risk of misidentification lead, cumulatively, to but one conclusion: it would be most unsafe, on the basis of the police evidence alone, to accept that the man attending 50 Ravenscrest on May 21st was the defendant Do.
[53] This, however, does not end this inquiry. I now turn to consider the circumstantial evidence bearing on the same issue.
(iii) Circumstantial Evidence of Identification
[54] Whatever its deficits, the officers' direct identification evidence must ultimately be read as only part of a global constellation of information that includes the complimentary circumstantial evidence of identification. While neither body of evidence may itself satisfy a trier as to Do's identification, their combined force may meet the requisite standard. I discuss, in due course, the principles governing reasoning from circumstantial evidence. I apply those principles here.
[55] When arrested, approximately $3,500 in cash, a sketch of a generic grow op, an apparent debt list and notations of various strains of marijuana were found in Do's personal possession or in the car he was driving. As noted, Canepa, the expert witness called by the Crown, was unable to offer an opinion as to the source of the seized monies, nor was any effort made to draw an expert nexus between any of the other seized items and the grow op at 50 Ravenscrest. Once the "proceeds" charge was dismissed, the remaining seizures were no longer of any probative value to the immediate prosecution. The arrest post-dated the execution of the search warrant by a couple of weeks and the seized items had no apparent connection to the Ravenscrest house. While they may well suggest something disreputable about Do's character, the documents would likely be inadmissible, even if remotely probative, due to this prejudice alone.
[56] Accordingly, the relevant circumstantial evidence respecting the identity of the defendant Do amounts to a single, if not insubstantial, incriminatory predicate: the fact that the suspect man at 50 Ravenscrest on May 21st was seen emerging from a silver Dodge Caravan that bore a licence plate registered to the defendant Do. A trier might infer from this primary fact that the man driving the van was its owner – but this is hardly the only available inference. The ultimate issue here is not who owned the van but who was driving it on that evening.
[57] The rigour of the Crown theory that, in effect, it is a natural inference that cars are driven by their owners is substantially qualified by ordinary human experience: sometimes we drive others' cars and sometime other persons drive ours. Indeed, the circumstances surrounding Do's arrest reinforce this proposition and thereby discounts the inculpatory value of the van's registration. When pulled over for speeding in Mississauga on June 27, 2014, Do was driving a grey Toyota. No evidence was tendered as to the registration or ownership of the Toyota. Do, in short, was not driving the silver Dodge Caravan on that date or, on the available evidence, any vehicle registered to him as owner. Further, and as an inevitable corollary, the evidence makes clear that a vehicle Do does indisputably drive is not always the Dodge Caravan seen at 50 Ravenscrest. Indeed, other than by way of boot-strap reasoning, there is no evidence that Do ever drove the Dodge Caravan registered to him. In short, Do's presence behind the wheel is not the only reasonable inference to be drawn from the proven fact that the Caravan was seen at 50 Ravenscrest on the evening of May 21st. Considering solely the circumstantial evidence, it would, again, be most unsafe to infer that Do was the man at the house because the van observed in the driveway was registered to him.
(iv) Conclusion Respecting Do's Identification
[58] What, then, is the combined effect of the direct and circumstantial evidence implicating Do as man who attended 50 Ravenscrest on May 21st? Given the viability of benign alternatives, the strength of the inculpatory inference I am asked to draw from the presence of the van in the driveway does not come close to compensating for the frailties, observational and procedural, infecting the direct identification evidence of the two officers. Combined, the evidence bearing on the subject falls well short of satisfying me to the requisite standard that the man seen at 50 Ravenscrest on May 21st was the defendant Do. In the result, I find the defendant Do not guilty of three remaining charges on which he was arraigned.
[59] My conclusion in this regard is the same as that reached in R. v. Bethune, [2010] O.J. No. 5098 (C.J.), a case in which, at least in my view, both the direct and circumstantial evidence carried more incriminatory weight than in the instant prosecution. One critical factual similarity between the two cases warrants special attention. As said by Marin, J. in R. v. Bethune, at para. 22,
The most significant flaw in the identification in this case is that it is dependent upon [the identifying officer] viewing a single photograph of an individual he knew to be connected to the black Honda and allegedly involved in criminal activity related to drugs before he even looked at the picture. That fact undermines the confirmatory potential of the other circumstantial evidence connecting Mr. Bethune to the car … . [Emphasis in original.]
[60] I add only this: police officers, by virtue of their occupation or training, are no more immune from the risk of misidentifying a suspect than any other witness. Nor, as a result, should their identification evidence be subject to any less scrupulous review. This is the point of the obiter "comments" made by the Court of Appeal in Miaponoose, supra, at paras. 31-32, comments made "not because they have a direct bearing on the disposition of [the appellant Miapanoose's] appeal, but in order to stress the importance of subjecting identification evidence" – whatever its provenance and whoever the witness – "to appropriate judicial scrutiny". This goal, the Court cautions, "cannot be effectively achieved without vigilance on the part of both Crown counsel and the judge".
[61] As necessarily follows, police officers who fail to closely adhere to the lessons of science and the settled wisdom of the law respecting the collection, processing and validation of identification evidence imperil appropriate determinations of both factual innocence and factual guilt. Whether driven by institutional arrogance or professional negligence, police departures from the protocols governing the retrieval of reliable identification evidence ill serve the administration of justice – whatever the direction of any judicial miscarriage that follows.
(c) The Residual Legal Considerations
(i) Introduction
[62] Four counts remain to be considered: simple possession of marijuana; possession of marijuana for the purpose of trafficking; production of marijuana; and theft of electricity valued in excess of $5,000. All four charges affect only the defendant Hwang. As noted earlier, the resolution of these charges commands special attention to two forensic areas: the law of "possession" and that of "circumstantial evidence".
(ii) The Law of "Possession"
[63] The defendant Hwang is charged with possession of the marijuana in an outer pouch of a suitcase found in a bedroom. He is also charged with possession for the purpose of trafficking of the marijuana plants located in the basement. As the alleged unlawful purpose is not contested, the issue respecting the basement marijuana devolves largely to one of possession.
[64] "Possession", as defined in section 2 of the Controlled Drugs and Substances Act, "means possession with the meaning of subsection 4(3) of the Criminal Code". The incorporated definition reads:
(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.
As explained by the Court of Appeal in R. v. Pham, 203 C.C.C. (3d) 326, at para. 14; affd. 2006 SCC 26, [2006] 1 S.C.R. 940:
Section 4(3) of the Code creates three types of possession:
(i) personal possession as outlined in s. 4(3)(a);
(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and
(iii) joint possession as defined in s. 4(3)(b).
There is no evidence of "personal" – as in actual, physical – possession, as defined in s. 4(3)(a), of any of the seized marijuana. Nor is the Crown theory of possession founded on "joint" liability. The legal basis for guilt, if any, thus rests on proof of "constructive" possession.
[65] Proof of possession, including constructive possession, depends on proof of two essential elements: knowledge and control. As put in R. v. Pham, supra, at para. 15,
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.
The Court concisely set out the Crown's burden in such prosecutions in R. v. Pannu, 2015 ONCA 677, at para. 156:
To establish constructive possession, the Crown must prove beyond a reasonable doubt that an accused
(i) knows the character of the object;
(ii) knowingly puts or keeps the object in a place; and
(iii) intends to have the object in the place for his or her use or benefit or the use or benefit of some other person.
[66] In the absence of any direct evidence, proof of each element here depends on circumstantial evidence, a matter to which I soon turn. What need be immediately said is that knowledge and control are distinct elements, each of which must be satisfied to the requisite standard to establish guilt. Control, for example, cannot necessarily be inferred from knowledge. Nor, as said by Laskin J.A. for the Court of Appeal in R. v. Grey, 47 C.R. (4th) 40, can one "prescribe a firm rule for inferring knowledge from occupancy". (See also, R. v. LePage, [1995] 1 S.C.R. 654.)
(iii) "Circumstantial Evidence"
[67] There is, here, no eye witness, confessional or other direct evidence as to any of the material facts: possession; production; theft. Accordingly, the prosecution's case is founded on circumstantial evidence – evidence from which the Crown invites me to infer both the facts at issue and, to the requisite standard, Hwang's guilt of each of the four charges he faces. While trite law, it is instructive to review the doctrine of circumstantial evidence before applying it to the immediate case.
[68] Ultimately, there is no distinction in the probative worth of direct versus circumstantial evidence: R. v. Cooper, [1978] 1 S.C.R. 860. The conventional formula that a finding of guilt lies only where proof beyond reasonable doubt is established obtains whether the evidence is direct, circumstantial or some combination of the two. However, the probative assessment of a prosecution founded on circumstantial evidence requires an additional inferential step beyond that employed in cases solely reliant on direct evidence. The Supreme Court addressed the distinction in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 88 and 89:
By definition, the only conclusion that needs to be reached in [a direct evidence] case is whether the evidence is true: see Watt's Manual of Criminal Evidence (2001), at § 8.0: "[d]irect evidence is evidence which, if believed, resolves a matter in issue"; McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 39 …
Circumstantial evidence is "evidence that tends to prove a factual matter by proving other events or circumstances from which [either alone or in combination with other evidence] the occurrence of the matter at issue can be reasonably inferred" (Merriam-Webster's Dictionary of Law (1996), at p. 172).
Or as said by now-Justice D.M. Paciocco and Professor L. Stuesser, "Unlike direct evidence, circumstantial evidence requires inferences to be drawn before it is of use in resolving material issues": The Law of Evidence (6th ed., 2011, at p. 28). In R. v. Atwal, 2015 ONSC 4425, at para. 86, Hill J. helpfully explained:
Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.
I add only that I would insert the phrase "or away from guilt" after the words "toward innocence".
[69] Accordingly, when dealing with circumstantial evidence a trier must, in addition to testimonial credibility, as well consider the range and valence of the inferences that arise from such evidence, viewed both independently and globally. Put simply, as it is by the Supreme Court in R. v. Griffin and Harris, 2009 SCC 28, [2009] 2 S.C.R. 42, at para. 33:
[I]n order to convict, [a trier] must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. [Emphasis added.]
(See also: R. v. Elmosri, 2007 YKCA 9, 223 C.C.C. (3d) 53 (Ont. C.A.), at para. 9; R. v. Fleet, 120 C.C.C. (3d) 457 (Ont. C.A.), at para. 20.) More generally, it is also here useful to recall the Supreme Court's words in R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 36, that an assessment of reasonable doubt "is logically connected to the evidence or absence of evidence" (emphasis added).
[70] The implications of the latter proposition in the context of a prosecution founded, as here, on circumstantial evidence, are more fully developed by the Court of Appeal in R. v. Bui, 2014 ONCA 614. In Bui, the trial court had followed the Court of Appeal's earlier endorsement (as set out in R. v. McIver, [1965] 4 C.C.C. 182, at para. 7) of the rule in Hodge's Case, 168 E.R. 1136, to the effect that "conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts". On appeal, the Court held that the trial judge had erred in his application of this maxim. It explained, at paras. 24-25 and 28:
[T]he trial judge erred in law in holding that, when assessing circumstantial evidence, conclusions alternative to the guilt of the accused must arise from "proven facts". …
In R. v. Robert, 143 C.C.C. (3d) 330, at para. 15, this court explained that, since the decision of the Supreme Court of Canada in R. v. Cooper, [supra], it has been clear that the rule in Hodge's Case is not "an inexorable rule of law in Canada". Further, the rule's reference to requiring "proven facts" to ground alternative explanations is problematic because there is no obligation on an accused to prove any facts. Rather, an accused is entitled to an acquittal if there is "a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a "reasonable inference" from "proven facts"": Robert, at paras. 17, 21 and 25.
… [T]he question of whether a reasonable doubt exists must be assessed based on the totality of the evidence adduced at trial and not simply based on the "proven facts". While the evidence at [the Bui] trial may not have been in dispute, the inferences capable of being drawn from that evidence were very much in dispute.
Lest there be any risk of misinterpretation, the Court, at para. 31 summarized the rule: it is "an incorrect view that, in a case involving circumstantial evidence, alternative to guilt must be based on proven facts". (See also, R. v. Atwal, supra, at para. 88.)
(d) Applying the Law
(i) Introduction
[71] So, what are the "facts"? What inculpatory inferences may be reasonably drawn from the primary facts, as they are often called, distilled from the evidence? What is the probative value of these inferences in the context of the totality of the evidence and the availability, if any, of benign competing inferences?
[72] I begin with certain factual features common to the assessment of each of the four offences.
[73] There was a marijuana grow op in the basement of the detached house at 50 Ravenscrest. One room was filled with clones and a second with more mature plants. Grow ops do not produce marijuana by themselves. Someone tends them: plants, maintains, harvests. Those engaged in any of these or related activities are guilty of producing marijuana. Whether or not involved in the drug's production, those who have knowledge of a grow op and exercise a measure of control over the facility are guilty of possession of the marijuana under cultivation and of constructive trafficking as well where, as here, no issue is taken with the commercial purpose of that possession.
[74] Curiously, no evidence was led as to what, if any, form of irrigation system – automatic? manual? remote-controlled? – nourished the growing plants. Nor was evidence led as to how often either room of plants required horticultural maintenance. Nor, unlike many commercial grow op prosecutions over which I have presided, is there here any evidence of CCTV surveillance, alarm systems or any other form or security. The absence of such evidence is hardly fatal to the Crown, but it does render unavailable the usual empirical platform from which to infer routine grow op burdens and the frequency or regularity with which they must be performed in this instance.
[75] Although the franking dates are unknown, correspondence directed to those named in the lease or their tenants was found in the mailbox during the execution of the search warrant. The landlord did not complain about his rent or the utility accounts being in arrears. Children's toys and personal possessions seemingly unrelated to Hwang were scattered through the main floor. It is reasonable to infer that the named tenants continued to have access to the premises. Said conversely: the defendant Hwang, even if an occupant, did not likely have exclusive access to the premises. Further, at least one of the known tenants, Jeremy Evans, held very recently-expired licences to produce, store and possess substantial amounts of marijuana, if nominally at a different address.
[76] The physical footprint of the marijuana production operation did not extend beyond the basement. There were traces of soil in some carpet areas and a few empty pots in the closed garage. Some ventilation piping and a hydro bypass were located on the ground floor, but there is no evidence of when these were installed. Suspicious materials were obscured by a duvet and behind a closet curtain in one of the bedrooms. Other than these upstairs vestiges of the illicit operation, the grow op and its related paraphernalia were restricted to the basement level. Other than the dry marijuana in the outer pocket of the suitcase, no drugs were found on the main floor. No scales, packaging equipment or any other indicia of commercial trafficking were located anywhere on the premises.
[77] There was, if only on occasion, an odour of cultivated marijuana. The evidence is mixed (perhaps reflecting growing cycles, changes in wind direction, olfactory sensitivity or the naiveté or sophistication of the observer), but two officers, both experienced grow op investigators, noted an odour of vegetative marijuana during the course of their surveillance – not on all days, and not even consistently as between the officers on the days they both surveilled the home. Nonetheless, the smell of vegetative marijuana was occasionally discernable from as far as 20 to 30 feet from the house and more intensely as one approached and particularly as one entered the basement grow op on the day the search warrant was executed. On the other hand, Stephen Wong, who was in the house the morning of and part of the night before the execution of the warrant, testified that he did not notice any unusual odours.
[78] Although Wong's credibility was not directly challenged by any party, I accept the evidence of the experienced surveillance officers as to a conspicuous odour of marijuana within the premises and, in particular, at the basement level.
[79] The evidence more particularly implicating the defendant Hwang strongly supports his occupying the residence at 50 Ravenscrest – at least on June 14, 2014, the day the search warrant was executed. Various personal documents, including Hwang's passport and social insurance card, were found in a bedroom. He had invited friends to the dwelling very early that morning and they had stayed through the night. He had keys to the premises. He parked his car in the driveway.
[80] What is far less settled is how long Hwang had occupied the premises. The suitcase containing a number of documents bearing his name appeared to be unpacked. No documents linked to Hwang were located anywhere other than in that suitcase or in its immediate vicinity. None of the correspondence in the mailbox was addressed to Hwang. He was not on the lease. He was not otherwise known to the landlord. He was not a subscriber to any utility services for the residence. Despite intermittent police surveillance over some eight days in the month preceding the execution of the search warrant, neither Hwang nor any vehicle associated with him was ever seen at 50 Ravenscrest. Someone who was clearly not Hwang drove a van to and entered the house on May 21st. And that same van was there the next day, May 22nd.
[81] Further, and as earlier noted, the house contained none of the conventional accoutrements of marijuana trafficking or consumption: no scales; no sealing equipment; no stay-fresh bags; no other packaging equipment; no grinders; no pipes; no rolling papers; no vaping equipment; no joints or roaches. Indisputably, there were seven ounces of dry marijuana in the side pouch of a suitcase and a grow op in the basement. Again, some ventilation piping ran through the upper floor. And, again, someone at some unknown time had installed a hydro bypass on the ground floor.
[82] As to the question of Hwang's liability for the particularized offences, I begin with the circumstantial evidence bearing on the marijuana found in the outer pocket of the suitcase. I then consider the weight of the evidence referable to the charges involving the basement marijuana and the related offence of theft of electricity.
(ii) The Marijuana in the Side-Pocket of the Suitcase
[83] As regards the offence of simple possession of marijuana, there is little of value to add to the evidence I have already reviewed. The police found the cache of seven ounces of the drug in the side pouch or pocket of a suitcase in a ground floor bedroom at 50 Ravenscrest. Hwang had invited friends to the house and, with them, had spent the night there. He had been arrested shortly before the drug was found, while endeavouring to back his car out of the driveway. His conduct, particularly that involving the house keys, readily invites the inference that he had access to the dwelling and intended to return. The suitcase contained identification documents bearing Hwang's name. Other documents, similarly tied to Hwang, were located in very close proximity. There is no evidence of identification documents in any other person's name being found in the house. Nor is there evidence reasonably capable of supporting the inference that, at the time, anyone other than Hwang physically occupied the Ravenscrest address.
[84] The defence position on this count is the legal equivalent of a Hail Mary pass. The marijuana, it is stressed, was found in a pouch on the outside of the suitcase rather than within its confines. Hwang's two guests spent the night at the house and others too may have had access to the house and thereby the side pocket of the suitcase. In short, while Hwang remained oblivious to such nefarious deeds, some unknown person may have secreted seven ounces of marijuana into the outer pocket of a suitcase that bore every hallmark of belonging to Hwang.
[85] As said in R. v. Bui, supra, there is no rule that "alternative to guilt must be based on proven facts". However, there sometimes comes a point where the "alternative" is no more than fanciful, where the thread of reasonable inference unravels into mere filaments of impermissible speculation. That point is well passed in this instance. Adopting the language of R. v. Griffin and Harris, supra, "the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty" of this count. Accordingly, I find the defendant Hwang guilty of the offence of simple possession of the marijuana found in the outer pocket of the suitcase.
(iii) The Basement Marijuana
[86] The three remaining counts are interrelated. It would be difficult to argue that one was involved in the production of the basement marijuana and yet not in possession, as legally defined, of that same marijuana. While a step removed, the charge alleging theft of electricity is again tied to the marijuana production, at least in the Crown's view, in so far as there is little conceivable reason to install a hydro bypass other than to avoid detection of the inordinate consumption of electricity consistent with the operation of a grow op or to reduce the related charges. Even accepting this proposition, someone hired to maintain or harvest or provide security at a grow op, as opposed to the facility's owner or manager, may well have no knowledge of the existence of a bypass, let alone be a party to any theft of electricity. To be clear, the Crown does not allege that Hwang was the proprietor of the Ravenscrest grow op, nor does any evidence lend support to this hypothesis.
[87] The factual matrix bearing on these three counts incorporates much of the evidence detailed in addressing the charge of simple possession. There are, however, a number of additional considerations particular to both the basement grow op and the defendant Hwang. At simplest, the theory of the Crown is that there is no other reason for Hwang to even be in the house other than some knowing involvement in the care or cultivation of the plants in the basement. I have no doubt that this is a viable inference that may be drawn from the totality of the evidence. At bottom, however, the question remains whether it is the only or ineluctable inference that reasonably arises from the primary facts.
[88] The evidence bearing on what may be called both the quantity and quality of Hwang's occupancy of the house is here of obvious materiality. I have found Hwang in possession of the marijuana found in the side pocket of a suitcase in an upstairs bedroom. As the suitcase contained his personal identity documentation, and as he had keys to and readily accessed the premises, and as he invited friends to come over for drinks and, as transpired, spend the night, I have no difficulty concluding that Hwang had a measure of control over the main floor, or upstairs, of the house. (See R. v. Emes, 157 C.C.C. 124 (Ont. C.A.).) However, these findings are not necessarily dispositive of the critical inquiries: whether Hwang had knowledge and control of the basement grow op.
[89] As I have earlier found, the vegetative odour of growing marijuana was conspicuous to those inside the house, at least on June 14th. Hwang was not naïve about marijuana; he had seven ounces of the substance in his possession that day. Further, it is reasonable to infer that someone trusted with keys to a premise housing marijuana would be made aware of its illicit contents: see R. v. Pannu, supra, at para. 157 and R. v. Wei, 2016 BCCA 75. This constellation of factors persuades me to the requisite standard that Hwang knew that marijuana was being cultivated in the basement of the premises. I see no realistic basis to draw an alternative inference.
[90] Unlike knowledge, the essential element of control is not so easily resolved. First, I cannot be satisfied that Hwang's occupancy of the house commenced any time earlier than June 13th, the day prior to the execution of the warrant. As already noted, neither Hwang nor any vehicle associated with him was surveilled at 50 Ravenscrest before June 14th. While Wong's testimony suggests that Hwang was already ensconced at that address by June 13th, the unpacked suitcase, the tight physical concentration of items attributable to Hwang and the absence of any indicia of domesticity do not suggest any longer occupancy. These circumstances are at least consistent with the briefest of residencies. While other more incriminating interpretations are available, the circumstantial evidence is at least open, and reasonably so, to the inference that Hwang had first attended the Ravenscrest address on June 13th. While, again, not the only available inference, his occupancy can then realistically be read as that of a guest or transient, as someone who is temporarily crashing at a friend's or acquaintance's, rather than as a resident of any permanence or a live-in employee or contractor. This line of reasoning, of course, is but one strand in the totality contributing to the determination of the element of control.
[91] A second line of inquiry inevitably focuses on the evidence connecting Hwang to the production of marijuana. Other than his presence in a house containing a grow op and, of course, the key fitting the basement door (a matter to which I soon return), there is little if anything that speaks to such connection. Wong did not observe anyone visit the basement while he was at 50 Ravenscrest. There is no other evidence situating Hwang in the basement or indicative of his ever having been there. There is no evidence of cultivation tools, chemicals or other grow op paraphernalia being located in Hwang's suitcase, in his car, or among other personal effects that may be attributable to him. There is no evidence of documents – debt, price or supply lists, irrigation or maintenance schedules, maps of pots or illumination layouts, for example – being found on Hwang or among what appear to be his possessions. There is no evidence of those items routinely associated with trafficking – such as scales and packaging equipment – anywhere in the house, let alone among Hwang's belongings. And, as confirmed by the Crown expert witness, in the absence, as here, of any facilities to dry harvested marijuana, there is no necessary nexus between the growing plants in the basement and the dried marijuana located in the outer pocket of Hwang's suitcase.
[92] More incriminatory are the keys to the house and, in particular, the one that locked and unlocked the basement door opening onto the grow op. That basement door, as D/C So testified, was unlocked at the time of the police raid. So's evidence respecting the two house keys is both inconsistent and vague. His firm testimony respecting his seizure of two keys from Hwang upon his arrest mutates into six keys in the course of cross-examination. He allows for the possibility that there were even more keys and that some were returned to Hwang. He agrees that the ring containing the two house keys appears distorted, possibly pried open before being attached to a larger ring containing the other four keys. And his evidence as to keys' provenance is in direct contradiction to that tendered through Wong, a Crown witness, who credibly described Hwang leaving the house keys on a ledge inside the front door so that Wong and Tsao, their mutual friend, could lock up after Hwang left for his appointment.
[93] Irrespective of the keys' precise location when located by the police, the common elements of So's and Wong's evidence leave me amply satisfied that Hwang had keys to both the front and inner basement door of the house. Hwang's physical access to the basement grow op is clearly relevant to the question of control, but there is still nothing other than possession (whether actual or constructive) of that key that speaks to whether he ever exercised such access. Indeed, on So's evidence the basement door was unlocked at the time the search warrant was executed. No evidence addresses the question of whether this was the door's routine state but, if so, the basement door key in Hwang's possession had no real bearing on his access to the grow op.
[94] As long ago as R. v. Piaskoski, 52 C.C.C. (2d) 316, at para. 6, the Court of Appeal held that "mere indifference or passive acquiescence" to the known presence of, in that case, stolen goods failed to satisfy the necessary element of control. There must be some evidence, if only circumstantial, of active or positive steps indicative of control or authority over the item at issue. R. v. Terrence, 55 C.C.C. (2d) 183 (Ont. C.A.); affd. , [1983] 1 S.C.R. 357, released the following year, is to the same effect. Referring to the fact scenario before him, MacKinnon A.C.J.O, on behalf of the Court in Terrence, wrote, at para. 23:
[T]he mere getting into a stolen vehicle knowing it to be stolen, without more, would not be sufficient to establish the measure of control which I conclude is necessary to satisfy the requirement of the subsection.
See also R. v. Bertucci, 169 C.C.C. (3d) 453 (Ont. C.A.), at 459; R. v. Savory, 94 O.A.C. 318 (Ont. C.A.), at 319; R. v. Williams, 125 C.C.C. (3d) 552, at paras. 11-16; R. v. Coull, 33 C.C.C. (3d) 186 (B.C.C.A.), at paras. 18-22.
[95] I find the above-quoted language from Terrence particularly apt to the matter before me, especially when read against the subsequent developments, as canvassed earlier, in the law governing circumstantial evidence. One can, with reason, infer Hwang's active involvement in the production of the basement marijuana. I am not, however, satisfied beyond reasonable doubt that this is "the only rational inference" available on the evidence.
[96] Hwang exercised a measure of control over the ground or main floor of the house: he occupied a portion of it; a suitcase containing his identification documents was in a bedroom; he invited friends to join him there for drinks. Hwang was also aware of the grow op in the basement. Further, among the house keys in his possession was one that locked and unlocked a basement door. However, mere possession of that key – as read in the context of all the ambient circumstances – does not, in my view, amount to such active steps as to move Hwang's conduct beyond "mere indifference or passive acquiescence" to constructive possession of the marijuana in the basement. Passive possession of the keys, absent evidence pointing to its utilization or other active participation in the grow op, is rationally consistent with his presence, as transient guest, in a house containing illicit goods to which he is indifferent or disinterested. A more incriminatory conclusion is rationally available, but the effect of the totality of the circumstantial evidence is, in the end, too equivocal to safely ground a conviction for either the possession or production of the basement marijuana on this basis.
[97] As the production and possession for the purpose counts are inextricably linked, and as the theft of electricity charge has no independent footing, I find the defendant Hwang not guilty of the three remaining offences on which he was arraigned.
D. CONCLUSION
[98] For the reasons just set out, the defendant Do is acquitted of all charges. The defendant Hwang is found guilty of simple possession of marijuana with respect to the substance found in the outer pocket of the suitcase. He is found not guilty of all the remaining charges he faced.
Released on June 1, 2016
Justice Melvyn Green