ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.:14-4552
DATE: 2015/07/16

B E T W E E N:

HER MAJESTY THE QUEEN

S. Antoniani, for the Public Prosecution Service of Canada

• and -

TRUNG TRAN

L. Shemesh, for the Accused

Accused

HEARD: June 15, 16, 18 & 19, 2015

REASONS FOR JUDGMENT

A. J. GOODMAN J.:

[1] Mr. Tran is alleged to have committed two drug offences, namely production of marihuana and possession for the purpose of trafficking of marihuana contrary to their respective provisions of the Controlled Drugs and Substances Act (“CDSA”). The count of the theft of electricity, contrary to s. 326(1)(a) of the Criminal Code was dismissed on the defence application of a directed verdict. Tran plead not guilty to the charges.

[2] All of these offences are alleged to have occurred on November 14, 2013 in the City of Hamilton.

[3] The trial proceeded with a blended voir dire with the Crown calling four police witnesses who were questioned not only as to the merits of the case but also regarding various alleged Charter violations. The Charter applications were dismissed with written reasons provided to the parties. For the trial proper, the accused called Mark Bayly as a witness and testified on his own behalf.

The Facts

[4] The case has its genesis from information provided to the police by a Hydro employee who reported a high level of hydro consumption and a hydro by- pass at 58 Curran Road. Members of the Hamilton Police Service made inquiries and they learned that the occupant of the home and name linked to the hydro account was Hanh Thi My Pham. Pham was unknown to the police.

[5] On November 5 2013, police attended at 58 Curran Road and observed the front lights to be on. There were no vehicles present. Officers walked by the residence and did not detect the odor of marijuana. On November 6 2013, officers again attended the residence and did not observe any vehicles.

[6] On November 7, 2013, police set up surveillance and a male, admitted to be the accused, was seen exiting the residence in question and getting into a black BMW motor vehicle with licence plate ASJT138. During this surveillance on November 7, 2013 Officer Mark Wilson testified that the accused was in the 58 Curran Road house for at least 30 minutes. He observed the accused exit the subject address, secure the door, and enter the vehicle. Police followed the BMW and observed Tran stop at a nearby temporary mail box, and use a key to retrieve mail. Police then followed the vehicle to the registered owner’s address in Waterdown.

[7] On November 8, 2013, Wilson conducted surveillance at 58 Curran Road. He observed the same BMW in the driveway. Twenty two minutes after commencing surveillance, Wilson again observed the accused exit the residence and get into the BMW. He did not observe any other vehicles or individuals at the residence.

[8] On November 14, 2013, police obtained a s. 487 Criminal Code search warrant to enter the residence in relation to the theft of hydroelectricity. At a briefing prior to the execution of the warrant, officers were apprised of two potential targets, the latter being the then-unidentified driver of the BMW. While conducting surveillance and prior to executing the search warrant, members of Hamilton Police Service observed the accused driving to the residence, and then exiting the same BMW in the driveway of 58 Curran Road.

[9] Officer Matthew Reed exited his police vehicle and went towards Tran. As he approached, Reed testified that he observed the accused discard one set of keys, by tossing them onto the front lawn. The officer later confirmed two sets of keys. The accused admitted that one key from one of the sets of keys unlocked the front door. The applicant was arrested by Detective Peckford.

[10] Pursuant to the warrant, police entered the residence, observed the marihuana grow operation and then held the residence pending the obtaining of a second search warrant, under the CDSA.

[11] Eventually, police located 478 clones in one room in the basement with 7 hydroponic lights, 165 Stage 3 marihuana plants in another room in the basement with 12 hydroponic lights, 175 Stage 3 marihuana plants in a further room in the basement with 17 hydroponic lights, and 174 Clones in an upper level bedroom closet. 687.26 grams of processed marihuana in a kitchen cabinet, packaged in 3 Ziploc bags, all together in a large vacuum sealed bag as well as an operational digital scale on the kitchen counter were located. The total amount of processed marihuana seized was 687.26 grams.

[12] According to the expert’s report, filed on consent, Detective Kerry Duench opined that this grow op was in the scale of a commercial operation. Duench’s report stated that the hydro service to the residence was compromised as the service was bypassed in the basement where a hole was drilled through the concrete and the hydro wires were diverted past the meter. Water was present near all wires and the bypass creating a fire hazard and safety risk.

[13] Duench’s report goes on to state that marihuana grow operations also required the use of electrical fans to circulate fresh air around the plants and to exhaust stale and hot humid air from the growing area. Electrical ballasts, high pressure light bulbs and fans use a great amount of hydroelectric power to operate and general a lot of heat. Although marihuana plants require a warm environment for growth, too much heat can damage the marihuana plant. For this reason, growers remove the heat from the grow room through the ventilation system and introduce fresh air to assist with plant growth. Some of the methods include ventilation systems built into the attic, toilets, and duct systems or through windows.

[14] The report added that marihuana in its vegetative state emanates a very unique odour which can be detected from outside the grow site. For this reason, the grower will try to mask the odour through the use of large carbon filters or ozone generators. This technology eliminates the odours to a great extent if used properly and if the equipment is of good quality.

[15] Duench reported that a total of 992 plants were located in the basement of the residence and in various rooms. In his opinion, the grow operation and bypass of hydro was sophisticated, designed for a continuous supply of marihuana. The fact that there were three separate rooms present with plants at different stages of growth is indicative of an on-going marijuana grow operation and not a marihuana grow operation set up to produce one crop for personal use. This set up is ideal to maximize the amount of marihuana that can be produced and is generally available for harvest every three to six weeks rather than waiting 12-18 weeks for a single crop. This will ultimately provide the trafficker with marihuana to sell on a continuous basis and ultimately maximize the profits. Circumventing hydro will also increase profits and hide detection.

[16] Duench opined on the prediction of the potential yield of the marihuana plants in this grow operation. On average, a marihuana plant produces between 28 grams and 100 grams or 1-5 ounces of smoke-able plant substance, taking into consideration there are many variables which may affect the weight the size of the plant. In this case, based on the size and strain of the plant, it is estimated that it would yield 1-2 ounces. When 55,552 grams of projected yield of marihuana is added to the 687.26 grams of processed marihuana located in the kitchen, the result is a total of 56,239.26 grams of processed marihuana, 2008.55 ounces or 125.53 pounds. The projected street value at the gram level – 56,239.26 grams x $10 per gram = $562,392.60; at the ounce level – 2008.55 ounces x $200 per ounce = $401,710.00 and at the pound level – 125.53 pounds x $2000 per pound = $251,060.00

Positions of the Parties

[17] As knowledge and control over the grow operation is one fundamental issue in this case, at the conclusion of oral submissions, I invited both parties to provide me with any authorities and brief written submissions on the discreet issue of whether there is any difference in the application of these principles with respect to the two discreet offences charged. Counsel chose to provide additional written submissions that went beyond the limited parameters of my inquiry. Nonetheless, I have considered all of the submissions.

[18] The Crown submits that the accused was a party to the offences of production and possession for the purpose of trafficking. Ms. Antoniani takes the position that the evidence establishes that the accused had knowledge and control and was in possession of the premises in which the marihuana was found by virtue of the fact that he was in possession of the keys that opened the front door to the premises and had been at the residence on recent prior occasions for a lengthy period of time.

[19] Ms. Antoniani submits that the case has been met by the evidence disclosed in the photographs. The house was sparsely furnished (with virtually no furniture, no stove and no or very little clothing or personal effects inside the house. The layout of the house was such that it is readily apparent that the primary and exclusive use of the home was for the marihuana grow operation and not as someone's residence. The hallway had some equipment and the basement was used exclusively for the growing of marihuana and was not secured from the rest of the home.

[20] Ms. Antoniani disagrees with the accused’s assertions as to the reasons for his attendance at the house and says that the defence witnesses are neither credible nor reliable, and in fact orchestrated their story to mislead the court. Their evidence ought to be rejected and given the totality of circumstances, it is submitted that the case has been proven beyond a reasonable doubt.

[21] Ms. Shemesh submits that the evidence of her client and of Mr. Bayly is credible and raises a reasonable doubt. These witnesses were not contradicted on the principal points of their testimony. The prosecution has not proven who was responsible for the grow operation, the production of the plants, including size and how long they were growing. There is also a lack of investigation with respect to the unknown tenant. On his evidence, Tran was not in a position to observe any of the plants in the basement or other locations as during his brief visits he did not attend any of those particular areas of the residence.

[22] Ms. Shemesh submits that in the case at bar, the Crown has failed to provide this court with any evidence that Tran had knowledge of the grow operation. Ms. Shemesh cited numerous authorities, in which the possession of keys to the residence was insufficient to support an inference of knowledge or control of the places that those keys opened, including cases that speak to the lack of evidence that an accused lived on the premises or had even visited the location.

[23] There is no evidence that Tran lived at the home, that he stayed there for any period of time and there is no evidence that he accessed any parts of the home – other than the laundry room and the garage. There is no evidence of any ventilation that would have been apparent from the front door. Indeed, the piping that the Crown referred to in the laundry room was not fixed – and may not have been present on November 8 when Tran was present in the home. There is no evidence that the “tubing” standing up in the laundry room was there on November 8. There is no evidence of any identification belonging to Mr. Tran present in the home. Further, Tran was present in and around the dinner hour and never later.

[24] The defence called witnesses to prove that the home was rented to Pham and that a tenancy agreement had been signed. Tran was simply there to check on the home and to assist his sister and brother-in-law in determining whether the tenant had left and or, why she was not paying rent on time. The timing of his attendances seem to accord with the failure to pay rent on time and the short duration of time in the home appears to corroborate Tran’s connection to the home.

[25] Tran was in possession of house keys and attended twice for short periods of time prior to his arrest on November 14. However, Ms. Shemesh says that is the only evidence as against her client. There was no evidence led as to his connection to the home – aside from the defence evidence that he was provided the house keys in order to check on the home and the legal tenant whom had not been remitting payment for the home. Tran testified that he had never been to the basement, was not aware of a grow operation and had no knowledge and control over the marijuana grow operation. There does not appear to be any evidence that proves Tran has any deeper connection to the home then the one he had testified to and the Crown never challenged that contention. The Crown has not satisfied this Court that Tran was a party, a principal and that he had knowledge and control over the marijuana found at 58 Curran Road beyond a reasonable doubt.

Legal Principles

[26] It is against this background that I now turn to the specific evidence and the analytical principles that I am required to apply in determining whether the accused is guilty or not guilty of the charges he faces.

[27] All of the evidence must be considered in determining whether the Crown has made out the charges beyond a reasonable doubt. The accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence or disprove the charges as alleged by the Crown and in the manner proposed by the prosecution. The most fundamental rule is that the burden of proving guilt of the accused lies upon the prosecution throughout the case. Before the accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of one or more of the offences charged against him.

Reasonable Doubt

[28] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus (1997), 118 CCC 3d 24 (Cory J). Later on in the Lifchus case, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof is higher than… a balance of probabilities, yet less than proved with absolute certainty".

[29] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable guilt. A conclusion of probable or likely guilt requires that an acquittal be entered: R. v. Starr (2000), 2000 SCC 40, 147 CCC 3d 449 (S.C.C.).

Assessing Credibility

[30] In a case such as this the framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.). 1991 93 (SCC), [1991] 1 S.C.R. 742.

[31] Ultimately, there are no fixed rules to which the Court can look to guide it in its assessment of the credibility of the Crown’s witnesses in this case, and its assessment of the credibility of the accused, but a number of elements may be considered. These include the perceptions of the witnesses, their memory, how reliably and accurately do they recall the events, the manner in which the witnesses’ perceptions have been communicated to the Court, and whether the information has been presented in a sincere, complete and truthful manner. The Court will look to the witnesses and assess whether they are being sincere and frank or biased, dishonest or careless with the truth, or reticent or evasive in the evidence that they have provided to the Court.

[32] Inconsistencies in the evidence of witnesses on relatively minor matters or matters of detail are, of course, normal. They are to be expected. Indeed, I would observe that the absence of such inconsistencies may be of even greater concern, for it may suggest collusion between witnesses in their evidence or fabrication or excessive rehearsal and regurgitation of a set story.

[33] However, where an inconsistency of a witness involves a material matter central to the elements of the alleged offences and about which common sense dictates that an honest witness is unlikely to be mistaken, the inconsistency can demonstrate carelessness with the truth that may undermine the whole of a witness’ evidence.

Legal principles of Production and Possession for the Purpose of Trafficking of Marihuana

[34] In assessing whether the Crown has established guilt beyond a reasonable doubt on the whole of the evidence in this case, some overarching principles merit consideration:

[35] The proof of unlawful possession requires the Crown to establish the two distinct elements of knowledge and control: R. v. Robinson, 2009 ONCA 626 at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont. C.A.), at para. 19. The notion of control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 2004 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.), at paras. 60-61.

[36] Mere knowledge of the presence of the grow operation in the house does not establish the necessary control to prove unlawful possession: R. v. Doan, 2011 ONCA 626, at paras. 10-11; R. v. Bui, 2002 BCSC 1903, at para. 12; R. v. Abdel-Malek, [1997] B.C.J. No. 999 (C.A.) at paras. 14-15.

[37] In order to prove possession, the prosecution may establish actual or personal possession by an accused or possession as described in s. 4(3)(a)(i)(ii) of the Code. In order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession: R. v. Terrence, 1983 51 (SCC), [1983] 1 S.C.R. 357, at p. 364. The prosecution may also seek to prove liability for possession by proof of party to the offence to produce the substance pursuant to s. 21(1) (b) of the Criminal Code, or if that person forms a common intention with another to grow the marihuana in a manner contemplated by s. 21(2).

[38] In most of these types of cases, it is common for the prosecution to prove possession by circumstantial evidence, possession has been described as "a question of fact capable of proof by inference": R. v. Caccamo (1975), 1975 11 (SCC), 21 C.C.C. (2d) 257 (S.C.C.), at p. 273; R. v. Vu, 2002 BCCA 659, at para. 23. “[I]t is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.), at p. 488 (aff'd 1979 31 (SCC), [1979] 2 S.C.R. 15); R. v. Pham (2005), 2005 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), at para. 18; R. v. Anderson, 1995 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.).

[39] In a circumstantial case, inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences". Any inferences must be carefully distinguished from conjecture or speculation. A judge must be alive to any explanation or contradiction or inference pointing toward innocence. A careful analysis is required as to whether that evidence reasonably supports the circumstantial inference sought to be drawn: R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont. C.A.).

[40] In order to convict in a circumstantial evidence case, the trier of fact 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: R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28 at para. 33. It is trite law that circumstantial evidence is not to be evaluated piecemeal, rather cumulatively: R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64. A trier of fact must determine what primary facts have been proved and what rational non-speculative inferences flow from the primary facts: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at para. 31; R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at para. 209 (Ont. C.A.).

Principles applied to the Present Case

[41] I recognize the fact-driven nature of the inquiry relating to knowledge and control, and the limited basis for case-to-case comparisons. Upon my review of the authorities it seems that in most grow-op prosecutions, surveillance evidence, documents found at the location or cultivation paraphernalia may circumstantially link the accused to the premises and in turn convincingly contribute to proof of knowledge and control. The application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, R. v. Yousif, [2011] A.J. No. 42 (C.A.) at para. 5.

[42] Here, the prosecution's case is entirely circumstantial.

[43] There is no dispute between the parties that on November 14, 2013, a large scale marihuana grow operation existed in a recently constructed two-storey detached home located at 58 Curran Road in Ancaster. It is not disputed that the house was owned by Mr. Mark Bayly. The quantity, nature and scope of the grow operation discovered by the police on November 14, 2013 is conceded.

[44] Ms. Antoniani acknowledges that the evidence does not support Tran as a principal to the production of the marihuana. Crown counsel urges the Court to find that the accused was a party to both alleged offences.

[45] This case clearly involves an innocent explanation offered by the accused of the Crown's evidence rather than evidence contesting the credibility of the Crown witnesses. That being said, the broader principles found in R. v. W.(D.) are still applicable. Therefore, if I believe the accused’s innocent account of what happened then obviously I must acquit. Even if I am not convinced that his version or that offered by the defence witnesses is the truth I must ask myself whether it nonetheless leaves me in a reasonable doubt. Finally, even if I am not left in doubt by the defence evidence, I am required to ask myself, having regard to the whole of the evidence and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of the accused in that the Crown has proved all of the essential elements of the offences charged.

[46] With the exception of Detective Peckford, I accept the police officers’ testimony without reservation. In my view, all of the officers’ recollections of the events and their presentation of their observations were balanced and credible. At times, the police witnesses conceded some lack of specific details in their notes, however, in my view, these were minor in nature. I accept the surveillance evidence and the observations of the accused and of the premises during the relevant periods in question. Duench’s expert opinion report is admitted and his conclusions were not challenged.

[47] In addressing the defence evidence, I turn first to Bayly. Having declared a modest income and purchase of a newly-constructed beautiful single family home for $480,000.00, only to later rent it out to a virtual stranger for cash, an amount less than his monthly expenses is one matter. Having deviated from his initial intention and subsequently desirous of “flipping” the house, presumably at a profit, (thus wanting to keep its integrity and value) and yet, not taking one step to view, or contact the occupant during the alleged tenancy or monitor, or inspect the property’s condition for months during the tenancy and after the alleged vacancy is another matter.

[48] Moreover, having not received the November rent payment, and not even bothering to personally investigate or assess his valuable asset, even after this problem with the tenant arose or became apparent in late October or November, instead vesting that responsibility to his brother-in-law (who claimed to have never had any status or prior involvement with the property), in order to “check on the house” defies common sense.

[49] Apparently, the tenant, Pham earned a living as a nail esthetician. Bayly did not conduct a single background check, ascertain her true income either known or verified, with vague if any details as to this individual’s employment, family, number of tenants or any other details one would normally expect for this type of rental transaction. There was no security deposit requested or received. As mentioned, despite the non-receipt of rent monies for November, Bayly made no efforts to contact the tenant, or if he did, it was to some non-reachable phone number, on a half-hearted basis. Bayly did not contact the utility companies to determine if tenant was still paying past or current bills. His efforts in this regard are far from convincing.

[50] While it appears that a “Ms. Pham” exists, at least as a person with a driver’s licence, Bayly knew little or nothing about this individual who he entrusted with his $480,000.00 new home that had a mortgage - albeit reluctantly conceded by Bayly - of $440,000 with his stated desire to flip the house, which implies some degree or attempt at profit. Bayly had no qualms accepting a significant shortfall of income for rent against his monthly expenses, although claimed cash payments for three months in advance was a good deal at the time.

[51] The witness presented a paper indicating some form of lease and proffering it as some valid agreement by virtue of a stamp with a name and address of a lawyer on the document, in order to enhance its value as something legal or bonafide. This so-called lease does appear to have a lawyer’s name and address stamped on the bottom of the one page document, but according to Bayly, this stamp was placed on the paper before the tenant was alleged to have signed it. To suggest that this document, with the lawyer’s stamp made it somehow legitimate and thereby provided some level of security and comfort for Mr. Bayly as lessor is entirely self-serving. I reject the reliability of this document.

[52] In the course of his testimony, Bayly’s evidence was inconsistent and at odds with the version provided by the accused. In my opinion, Bayly was flippant with respect to his stated intention to sell the house and was clearly ambivalent as to its upkeep or care. His explanations for his actions or inaction during this relevant timeframe are not believable. I question Bayly’s true motivations and while I have suspicions as to his actual participation or connection with the 58 Curran Road house, that is not the criteria or issue before me. However, if Pham’s involvement was not subterfuge for what truly was going on, then it was someone who lent their name to persons or persons unknown to benefit the scheme being perpetrated at 58 Curran Road.

[53] Tran’s testimony was also replete with internal and external inconsistencies.

[54] Tran vacillated in his version with respect to how he obtained the keys for the house and the rationale or objectives for his having the keys and the scope of what he was to do at 58 Curran Road on various visits. There is also internal inconsistencies as to whom, where and when he received the keys.

[55] To cut or not to cut the grass? According to the accused’s evidence, the chief reason he attended at the house on November 8 was due to the fact that the grass needed mowing, even with evidence of cold fall weather having descended on the Hamilton environs. Nonetheless, despite his stated intention for his attendance on November 8, the effort was aborted due to a malfunctioning lawn mower. Having abandoned the endeavor for that reason, the grass was just left untouched. There was no testimony about any subsequent efforts to cut the lawn, borrow another mower, or arrange for someone else to do it. Bayly testified that it was not his responsibility to cut the grass so it was not his concern. So on what basis would Tran return to the house to mow the lawn? The real answer to the question is left unanswered. What we do know is that according to Bayly, he advised Tran to check on the house on two occasions. Bayly testified that he had no idea why Tran went on a third occasion or on consecutive days, and this differs entirely with Tran’s recollection and stated intention regarding his visits to the property in question.

[56] In any event, the evidence surrounding the mowing of the lawn is bereft of any effort or follow-up by either Bayly or Tran. No one returned the next day or days later to address the mowing of the lawn. Tran testified that he did not intend to cut the grass on November 14. I find these were all convenient albeit poor excuses for Tran’s explanation of his re-attendance at the house on November 8.

[57] On November 7, the accused left the residence and went to a nearby mail box in an effort to retrieve mail. A somewhat innocuous activity by itself, however Bayly testified that he requested Tran check the mailbox for the tenant’s mail or bills in order to ascertain her status and tenure with the house post-November 1. Tran says that his attendance at the mailbox was to check for Bayly’s or his sister’s mail, totally inconsistent with Bayly’s evidence and more likely the truth.

[58] Tran’s explanations about the timing of his visits in conjunction with his employment or other activities on the days in question are entirely self-serving. His travels to and from the house in conjunction with his obligations for the day do not make sense.

[59] Of significance is that the accused had no explanation or comment to Wilson’s testimony about his being observed in the house for at least 30 minutes on November 7, as opposed to his claiming it was just mere minutes.

[60] In my opinion, Tran took calculated steps to carefully explain about his limited positioning in the house in an attempt to convince me that he was only in certain precise areas of the home, all of which would have left the impression that he was never in locations where there was any opportunity to view marihuana or the grow operation equipment. Tran purposefully minimized his actions in the house, stating that entered the house and remained just in the front foyer for minutes on November 7 and went straight to the garage in order to cut the grass on November 8. In cross-examination, his testimony about the path he took while in the home continually vacillated. His lack of recollection about the tubing and carbon filter in the laundry room and his follow-up explanation that he was “just there to get the grass cut” is not credible.

[61] Whether or not the circumstances of a given case support the inference that an accused is in possession of premises where marihuana is being grown is always dependent on the facts of each case. Sometimes the facts are clearly open to alternative innocent explanations and in those cases an accused must be afforded the benefit of the doubt.

[62] Even if I were to accept Tran’s evidence for the reasons he initially went to 58 Curran, it defies logic. If Tran was there to check on the tenant, why was there a need to enter the residence on November 7? Bayly claimed that he didn’t authorize entry, albeit he or his wife provided Tran with the house keys. Having not received a response to the front door, Tran testified that he decided to enter the house, for a very brief period, yet remained just in the front foyer area. Having decided to enter the home, why didn’t he check the entire house and only remain near the front door- to what purpose? Tran never even bothered to check if the tenant was lying hurt or injured in a part of the house or to assess whether there were personal effects still within the premises or some damage to the property. Tran also claimed that he did not check the exterior of the house.

[63] His testimony about his mode of entry and egress at the house in an attempt to justify his actions is without regard to consistency and common sense. I do not accept his evidence that he only remained in front foyer or about the discreet path he claimed he travelled while in the house.

[64] Interestingly, the three times police observe Tran at the residence are the only three times he reports attending at 58 Curran Road, and again, even at that, is contrary to Bayly’s testimony. The alleged instruction from Tran’s sister whereby he claimed he had permission to enter the premises is hearsay and is entirely self-serving. I reject Tran’s evidence about his intention and the reasons for his attendance in order to check on a wayward tenant or to mow the lawn.

[65] The remaining question is whether the evidence supports a conclusion that the Crown has proven there was production and possession of marihuana for the purpose of trafficking. It is not in dispute that the quantity of marihuana in this house sufficiently supports the inference that it was for the purposes of production and the quantity is more than sufficient for possession for the purpose of trafficking. Detective Duench estimates that the 992 plants from this grow operation have a potential street value of between $250,000.00 and $560,000.00 depending on its mode of distribution. The Crown led expert evidence about customary usage and the value of the marijuana clones in grow operations.

[66] As mentioned, the Crown must establish, beyond a reasonable doubt, the accused’s knowledge and control over that marijuana. The law requires both knowledge and control before possession can be found. Knowledge and presence is not enough. It is not an offence of "possession" for someone to be present in a grow operation even with awareness of the nature of the place being visited, absent evidence of control or the intention to exercise control.

[67] Possession is not an included offence in the offence of production or cultivation, the “gravamen” of which is the active participation in the growing of the prohibited plants. The jurisprudence provides that a person may be convicted of production as either a principal or a party who aids or abets the principal. In regard to a marihuana crop, the offence of production typically requires proof of some act of tending to the crop or enabling its growth. Planting, applying fertilizer, assembling the apparatus that contribute to growth of the crop or harvesting the crop are examples of actions that would constitute production in the context of the CDSA. In a “grow op” case, an accused may be found to have aided and abetted in the production of the marihuana by maintaining the environment in which the marihuana is produced, with the purpose or intent to assist in the crime.

[68] The decision in R. v. To (1992), 1992 913 (BC CA), 16 B.C.A.C. 223 advances the proposition that, in the absence of a credible explanation, an inference of knowledge may properly be drawn from the circumstantial evidence in some cases. In that case, the trial judge found that it was exceedingly unlikely that anyone on the property would be entrusted with possession of the key to a growing operation worth approximately 1.4 million dollars without that person knowing about the drugs.

[69] Ms. Shemesh argues that the layout of the house and operation exclusively in the basement along with Mr. Tran’s testimony and the lack of any other evidence should lead me to the conclusion that anyone inside of 58 Curran would not necessarily know about the grow operation inside the premises. While I recognize that the grow operation was primarily situated in the basement in different rooms, I draw the inference that the size and scope of the marihuana crop growing inside was so large that anyone entering the house would have immediately smelled the marihuana, and having spent more than a moment or two inside the premises would have observed the black tarp at the bottom of the stairs leading to the basement and would have been aware of some of the piping or filters in the laundry room on the first floor.

[70] Ms. Shemesh argues that the offence of production of marihuana requires active participation, and that mere acquiescence in the act of another is not an offence: Vu,; R. v. Hubble, [2002] B.C.J. No. 2327, R. v. Quan, [2011] O.J. No. 1827 (C.J.) are some examples. Indeed, these are true propositions of law. However, in my opinion this case stands apart from situations where there is a possible innocent explanation for presence at a scene, for example, a one-time visitor to the location, where the production facility is in the basement of a dwelling and the accused occupies a bedroom in an upstairs room or a farmer tending to his crops in the vicinity of an open-field marihuana production facility.

[71] The term "production" is defined in s. 2 of the CDSA to include "cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained." The actus reus of production is a continuing one, starting at the seeding and continuing until harvest or death of the plant: R. v. Emes, [1999] O.J. No. 1311 (S.C.), Hill J. quoted from R. v. Arnold (1990), 1990 2201 (BC CA), 74 C.R. (3d) 394 (BCCA). It follows that, since marihuana plants require weeks to go from seedling to maturity, there will be days and weeks when nothing need be actively done in order to further the cultivation.

[72] An accused need not physically touch the plants in order to be guilty of production: R. v. Mowry 2006 CarswellNB 70 (NBCA). Again, while mere presence at the scene of a grow operation is insufficient, a prolonged unexplained absence at the scene of a marihuana plant operation may support an inference that the accused was producing marihuana: R. v. Jackson, 2007 SCC 52, [2007] S.C.J. No. 52.

[73] In considering the fundamental legal requirements of constructive possession, knowledge and control, numerous courts have held that possession of a key for the building where the grow-op is located can be an important factor relating to the issues of knowledge and control: R. v. Scott (2012), 2012 BCCA 99, 280 C.C.C. (3d) 232 (B.C.C.A.), at paras. 7-9. In R. v. Dinh, 2008 ONCA 62, the accused’s vehicle was at the house on previous days and on date of arrest. He was in the house for 6 hours and in possession of a key for the residence. In R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at para. 32, the accused arrived at the scene and possession of house key amounting to some evidence justifying an order for a new trial based on a Charter breach.

[74] In R. v. Bui 2002 BCSC 1903, [2002] B.C.J. No. 3365, the accused was found present in a home containing a marihuana grow operation, but without any evidence of control over the premises. The judge found that there was insufficient evidence where Mr. Bui was in grow-op premises for 5 hours and the accused was not in possession of house keys and was found to be a mere visitor. However in R. v. Egresits, 2002 BCCA 163, at paras. 5-8, one of a number of persons with keys to residence where grow-op found the court found evidence insufficient to exclude others as person(s) responsible for grow-op.

[75] In Dunlop v. The Queen, 1979 20 (SCC), [1979] 2 S.C.R. 881, the Supreme Court ruled that mere presence at the scene of a crime in circumstances consistent with innocence is insufficient to support a conviction. However, here, I have rejected Tran’s explanations and find that he was at 58 Curran on more than one occasion, and significantly longer than his claim of a few minutes on the first visit and his minimization of his tenure at the residence on the second consecutive day’s attendance.

[76] I accept that possession of marijuana for the purpose of trafficking and production of marijuana are clearly separate offences with separate elements, such that proof of one does not lead inextricably lead to proof of the other.

[77] One is left with the evidence that the accused had the keys to the premises, that he had the keys to a vehicle parked outside the premises that had been previously identified at the scene and that he was sufficiently concerned about the premises to attend inside. Using the same analogy as was considered in Vu, at paras 23-24, the circumstances under which he was found at the house logically support an inference of knowledge of what was inside the premises.

[78] Where an individual takes responsibility for a growing marihuana crop, that person "cultivates" the crop. This may include safeguarding the growing marihuana crop even during periods where there are no seeds to plant and no other active participation in the growth of the plants. Maintaining watch over the plants so as to be available, or keeping control of a house where there is growing marihuana is an act which assists the grower of the crop and makes one who controls the house under such circumstances guilty of the offence of production as a party to the offence.

[79] It is true that Tran did not occupy or live in the house and none of his personal effects were present. I recognize that there is no direct evidence of his actions within the house. However, I accept that he was in the grow house for at least 30 minutes on November 7 and for at least 22 minutes on November 8, and had intended to enter the grow house on the day of his arrest. His tossing of the front door keys to the ground when confronted by police is suggestive of his desire to distance himself from any connection to the grow operation, although, I place less weight on this factor as it may have been as a result of a police direction.

[80] Here, I am not only satisfied that the accused had constructive possession but also had knowledge of the grow operation. Tran testified that he did not smell any marihuana when he entered the residence on November 7 or 8. However, I accept the evidence of Wilson that the pungent smell of vegetating marijuana was present when he entered the house on November 14. According to the expert evidence, with the various stages of growth and development of the plants in this high volume commercial operation, I draw the reasonable inference that the odour of vegetal marihuana would have been present on November 7 and 8 to some degree; at least alerting any visitor or occupant to its presence. Given the amount of marijuana being grown in this house comports with common sense. While not argued before me, if a person, having the means to investigate, experiences strong suspicious of an odour of vegetal marijuana but then deliberately chooses not to investigate they are willfully blind: R. v. Briscoe 2010 SCC 13, [2010] S.C.J. No. 13 at paras 21-23.

[81] Given the various mature plants and stages of development, this was a sophisticated operation that required much planning, organization and infrastructure. I draw the inference that the plants would have been present in various stages of growth on November 7 and 8, 2013. I am satisfied that this extensive commercial grow operation was not just set up in the intervening six days from Tran’s second visit to the date of his return and subsequent arrest.

[82] On the issue of control, similar considerations are at play, including Tran’s entry and egress, sole occupancy and access to the house, with the processed marihuana located in a kitchen cabinet, as well as an operational digital scale on the kitchen counter. Tran’s possession of a key that opened the front door and mailbox, the extensive commercial nature of the operation, the custom lighting along with seven oscillating fans and six exhaust fans, the degree of sophistication and the attention needed to maintain the health of the marihuana plants along with the length of time Tran spent at the house on prior occasions.

[83] The value of the drugs makes it extremely unlikely that anyone would have possession of the key to the grow operation and be in the residence for the extended period as found here and yet have no knowledge of the existence of the drugs. I am satisfied that it is not an innocent and innocuous occurrence and any suggestion that the party responsible for this extensive and valuable marihuana grow operation would turn the keys to the house and grant free unimpeded access to a person unconnected with the operation defies logic and common sense.

Conclusion

[84] After careful analysis, I neither believe Tran’s innocent explanation, nor does the defence witnesses’ account raise a reasonable doubt. Put simply, there is nothing in his testimony which leaves me with a reasonable doubt about his involvement with the marihuana grow operation. I have not just arrived at this conclusion because Tran’s evidence was internally and externally inconsistent on significant points. I reject his testimon