



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bui, 2014 ONCA 614

DATE: 20140829

DOCKET: C55994

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thu Van Bui

Appellant

Delmar Doucette and Daniel Santoro, for the appellant

Xenia Proestos, for the respondent

Heard: August 12, 2014

On appeal from the conviction entered by Justice Peter
    Hryn of the Ontario Court of Justice on March 21, 2012.

Simmons
    J.A.:

A.

INTRODUCTION

[1]

On January 15, 2009, the police executed a search warrant at a house jointly
    owned by the appellant and his wife. When the police entered the house, they detected
    a strong smell of freshly grown marijuana. During their search, the police found
    a significant marijuana grow operation. In addition, they found a loaded
    handgun hidden between the mattress and box-spring of a bed located in a second
    floor bedroom.

[2]

Apart from the bed, the house was sparsely furnished. Police found
    limited food, dishes or cooking utensils in the house. However, both mens and
    womens clothing was found in the second floor bedroom; and prescription pill
    bottles in the names of six different individuals were found on the kitchen
    table.

[3]

The appellant arrived at the house shortly after the search warrant was
    executed and was arrested immediately. Following his arrest, the police found a
    key to the house in his pocket.

[4]

The appellant and his wife were subsequently charged with a number of
    offences, including: production of marijuana; possession of marijuana for the
    purpose of trafficking; possession of the proceeds of crime; theft of
    electricity; possession of a prohibited weapon, namely a knife, (collectively
    the grow operation charges); and various firearms offences.

[5]

On the third day of trial, the Crown withdrew all charges against the
    appellants wife. At the conclusion of the Crowns case, the appellant did not
    call evidence. Rather, it was his position that the Crown had failed to
    disprove potential innocent explanations for the circumstantial evidence it
    presented, such as him being an absentee landlord who was visiting the house
    for the first time. He pointed to the absence of surveillance or other evidence
    suggesting that he occupied the home or was personally involved in the
    marijuana grow operation. Further, the appellant contended that the case with
    respect to the handgun was even weaker than the case with respect to the
    marijuana grow operation. According to him, a person could be involved in the
    marijuana grow operation without knowing about the hidden gun.

[6]

The trial judge found the appellant guilty of all charges. In his
    reasons, he found no evidence of another person or persons being involved with
    the marijuana grow operation. Indeed, in his view, the evidence was to the
    contrary. He concluded there were no proven facts upon which [he could] infer
    that someone else controlled the marijuana grow operation without the
    appellants knowledge.

[7]

The main issues on appeal are: i) whether the trial judge erred in his
    statement and application of the rule in Hodges Case; and ii) whether the
    trial judges findings of guilt on the firearms charges constituted an
    unreasonable verdict.

[8]

For the reasons that follow, I would allow the appeal.

B.

background

[9]

The appellant and his wife purchased the house in April 2004. Ministry
    of Transportation records disclosed that the appellant had updated his
    residential address seven times over 20 years but that he had never shown the
    address of the house as his residential address.

[10]

Two
    days before the execution of the search warrant, the police conducted
    surveillance of the house for about four hours. A van registered in the
    appellants name was parked in the driveway. However, during their
    observations, the police did not see anyone at the house.

[11]

When
    the police executed the search warrant, the appellants van was again parked in
    the driveway, but no one was in the house. During their search of the house, the
    police found 50 baby clone marijuana plants on the second floor and 323 marijuana
    plants in various states of growth in the basement. In addition, they found a hydro
    meter by-pass; fans and a ventilation system; and, in the second floor
    bathroom, two drums of water and pesticide.

[12]

In
    addition to the marijuana grow operation, the police found a loaded
    semi-automatic handgun in a second floor bedroom of the house. The bedroom
    contained the only bed in the house  a mattress on top of a box- spring
    sitting directly on the floor. The handgun and some ammunition were found
    wrapped in white packing paper, hidden between the mattress and box-spring. A
    knife that opened by centrifugal force was found in the family room.

[13]

The
    police also found: mens and womens clothing (including womens underwear) in
    the second floor bedroom; feminine hygiene products in the second floor
    bathroom; and seven pill bottles with six different persons names on them on
    the kitchen table. The medications in the pill bottles had been prescribed between
    2005 and 2008. One of the pill bottles had the appellants name on it for
    medication prescribed in 2006.

[14]

Among
    other items found during the search, the police seized opened mail related to
    the property, such as a water bill and a gas bill, all in the names of the
    appellant and his wife. No mail was found in anyone elses name.

[15]

As
    the police were in the process of leaving the house after completing their
    search, the appellant drove down the street and parked his car. He waited on
    the road  and then, with several readily identifiable police officers nearby,
    drove into the driveway as soon as a police van pulled out. The police arrested
    the appellant as he was getting out of his car. On searching him, the police
    found a key to the house in his pocket.

[16]

At
    trial, the Crown led evidence about hydro consumption and called an expert
    witness who testified about hydro consumption patterns and theft of
    electricity. The evidence indicated that after the house was purchased the
    hydro service was registered in the appellants name and continued to be
    registered in his name until the execution of the search warrant. In the first
    few months after the appellant and his wife purchased the house, electrical
    consumption rose to about three times the daily consumption of the previous
    owners. Thereafter, consumption dropped, consistent with the installation of a
    hydro meter by-pass. Further, on specified dates between June 2007 and January
    2009, the pattern of consumption followed a 12 hour on-and-off cycle that differed
    from the pattern of the previous owners and the neighbours, and that was
    consistent with the use of an electrical lighting timer for growing plants.

[17]

A
    police officer, who was qualified as an expert in marijuana grow operations,
    testified that one person could care for a marijuana grow operation of this
    size. In cross-examination he indicated that he could not recall arresting more
    than two persons at a time  usually a couple  for a grow operation of this
    size. Another officer acknowledged that it was not possible to know how many
    persons had been involved in this grow operation.

C.

the trial judges reasons

[18]

At
    the outset of his reasons, the trial judge noted that the issue in dispute was
    whether the appellant had knowledge and control of the items found in the house.
    As the appellant owned the home since 2004, the trial judge found that if the
    appellant had knowledge, he also had control. The issue therefore was
    knowledge.

[19]

After
    observing that the Crowns case was based on circumstantial evidence, the trial
    judge quoted the following portion of
R. v. McIver
, [1965] 4 C.C.C.
    182, at para. 7, in which this court repeated the requirement from the rule in Hodges
    Case that conclusions alternative to the guilt of the accused must be rational
    conclusions based on inferences drawn from proven facts:

The rule in Hodges Case  was that before [the jury] could
    find a prisoner guilty, they must be satisfied not only that the circumstances
    were consistent with his having committed the act, but they must also be
    satisfied that the facts were such as to be inconsistent with any other
    rational conclusion than the prisoner was the guilty person. In his judgment,
    the Chief Justice said:

The rule makes it clear that the case is to be decided on
    the facts, that is, the facts proved in evidence, and the conclusions
    alternative to the guilt of the accused must be rational conclusions based on
    inferences drawn from proven facts. No conclusion can be a rational conclusion
    that is not founded on evidence. Such a conclusion would be a speculative,
    imaginative conclusion, not a rational one. [Emphasis added.]

[20]

The
    trial judge went on to review the position of the Crown, the evidence the Crown
    relied on and the position of the defence. He then set out his analysis. Included
    in this review and analysis were the following observations:

·

there was evidence that the marijuana grow operation required an
    experienced grower, and likely one individual or a couple;

·

except, perhaps, for some dated prescription containers in
    various names, there was no evidence that multiple individuals attended the
    house and the marijuana grow operation;

·

with respect to the defence submissions, it did not assist him to
    comment on how the police conducted the investigation; that is, what
    surveillance was or was not conducted, and whether fingerprints or DNA evidence
    was or was not collected. His role was to weigh the evidence that was in fact
    collected and presented in court;

·

there was no evidence that the property was rented out;

·

there was no evidence that the male clothing fit more than one
    male, nor that it did not fit the accused. There was womens clothing and
    costume jewellery. The accuseds wife was a co-owner; and

·

there was no evidence, but the opposite, that multiple
    individuals were involved in the operation of the marijuana grow and that
    therefore, one individual could have secreted a handgun without the knowledge
    of the others.

[21]

The
    trial judge concluded his reasons with the following assessment:

There are no proven facts upon which I can infer that some
    imagined person other than the accused, controlled the marijuana grow operation
    in the accuseds house without the accuseds knowledge
. Such a conclusion
    would be speculative, and not a rational conclusion. The Crown has proven the
    accuseds guilt beyond a reasonable doubt. The accused is found guilty of all
    counts. [Emphasis added.]

D.

Discussion

(1)

Did the trial judge err in his
    statement and application of the rule in Hodges Case?

[22]

The
    appellant submits that, in setting out the principles that apply to assessing
    circumstantial evidence, the trial judge erred in holding that conclusions
    alternative to the guilt of the accused can arise only from proven facts. The
    appellant says this error led the trial judge to shift the onus of proof and
    casts serious doubt on his findings of guilt.

[23]

In
    response, the Crown submits that, read in context, the trial judges rejection
    of the hypothetical alternatives to guilt relied on by the defence was not the
    product of reversing the burden of proof. The Crown is not required to disprove
    hypothetical theories not grounded in the evidence. The trial judges
    references to proven facts were nothing more than a response to the
    hypothetical alternatives to guilt advanced by the appellant that lacked an
    evidentiary foundation.

[24]

I
    agree with the appellant that the 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. Further, in my view, the trial
    judges reasons demonstrate that this error infected his reasoning process.

[25]

In
R. v. Robert
(2000), 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
, [1978] 1 S.C.R. 860, it has been clear that the rule in Hodges Case
    is not an inexorable rule of law in Canada. Further, the rules 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.

[26]

The
    Crown submits that this case is distinguishable from
Robert
because
    the accused in
Robert
called expert evidence to show that the fire he
    was charged with setting could have been caused accidentally. In
Robert
,
    the trial judge erred by requiring the appellant to prove that the fire was caused
    accidentally as opposed to considering whether the evidence raised a reasonable
    doubt.

[27]

According
    to the Crown, this case is different from
Robert
because, in this
    case, there was no competing evidence to consider and, indeed, no issue as to
    the proven facts. The facts were not in dispute. In the absence of evidence,
    the Crown is not required to disprove every conceivable explanation that could
    be urged upon the court.

[28]

In
    my view, this submission ignores the fact that the 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 trial may not have been in dispute, the inferences capable of being drawn
    from that evidence were very much in dispute.

[29]

As
    I read his reasons, the trial judge blurred the distinction between evidence,
    available inferences and proven facts. For example, in rejecting the defence
    submission that someone else could have hidden the handgun in the bed, he found
    that there [was] no evidence, but the opposite, that multiple individuals were
    involved in the operation of the marijuana grow.

[30]

While
    it is true that no one testified about the presence of persons other than the
    accused at the house, the evidence that both male and female clothing was found
    in the house and of the presence of prescription pill bottles in the names of
    several persons, gave rise to an available inference that more than one person
    had been in the house. Taking account of the state of the house (including the
    sparse furnishings, limited food and large number of marijuana plants) this, in
    turn, gave rise to an available inference that more than one person was involved
    in the marijuana grow operation. Although that inference may not have been
    strong enough to constitute a proven fact, it was not a mere theoretical
    possibility lacking any evidentiary foundation.

[31]

In
    my view, the trial judge erred in finding that there was no evidence that
    multiple persons were involved in the marijuana grow operation and in rejecting
    the defence submission about the handgun on that basis. As I read his reasons,
    this erroneous conclusion was driven by an incorrect view that, in a case
    involving circumstantial evidence, alternatives to guilt must be based on
    proven facts.

[32]

Although
    I acknowledge that the Crowns case that the appellant was at least a
    participant in the grow operation was strong, the trial judges erroneous
    approach to assessing the evidence could well have tainted his assessment of
    this issue. The Crown does not ask that we apply the proviso. In the
    circumstances, I would give effect to this ground of appeal. I will deal with
    the appropriate remedy after discussing the second ground of appeal.

(2)

Did the trial judges decision on
    the firearms charges constitute an unreasonable verdict?

[33]

The
    appellant does not dispute that the evidence led by the Crown at trial was
    capable of supporting findings of guilt on the grow operation charges. However,
    he contends that the trial judges decision on the firearms charges constitutes
    an unreasonable verdict. I agree.

[34]

To
    find the appellant guilty of the firearms offences, the trier of fact would have
    to be satisfied beyond a reasonable doubt that the appellant knew about the
    presence of the gun and had an element of control over it:
R. v. Pham
(2005), 77 O.R. (3d) 401 (C.A.), at para. 15, affd 2006 SCC 26;
R. v.
    Provost

(appeal by Watson)
, 2011 ONCA 437, 94 W.C.B. (2d) 733, at
    para. 10.

[35]

For
    the reasons I have explained, I am satisfied that the evidence of both male and
    female clothing being found in the house and of the presence of prescription
    pill bottles in the names of several persons, together with the evidence about
    the state of the house, gave rise to available inferences that more than one
    person had been in the house and that more than one person was involved in the
    marijuana grow operation.

[36]

In
    these circumstances, in the absence of some specific evidence linking the
    appellant to the gun, I see no basis on which a trier of fact could exclude the
    possibility, founded on the evidence, that another person hid the handgun and
    ammunition in the bed without the appellants knowledge.

E.

remedy

[37]

The
    appellant seeks a new trial on the grow operation charges and an acquittal on
    the firearms charges. In its factum, the Crown submitted that, if the appeal is
    allowed, we should order a new trial on all charges. For reasons that I will
    explain, I would not accept this submission.

[38]

At
    trial, the Crown tendered an inculpatory statement made by the appellant
    immediately following his arrest in which the appellant acknowledged operating
    the marijuana grow operation and purchasing the handgun. The Crown sought to
    prove the statement was voluntary. The appellant brought an application seeking
    to exclude the statement under ss. 10(a), (b) and 24(2) of the
Charter
.
    He denied making the statement and testified that he had virtually no ability
    to communicate in English. The trial judge excluded the statement, holding that
    the Crown had not proven beyond a reasonable doubt that it was given voluntarily.
    In the result, the trial judge did not address the appellants
Charter
application or make findings of fact concerning the appellants credibility.

[39]

On
    appeal, the Crown contends that the trial judge erred in excluding the
    statement simply on the basis that it was not recorded. In addition, the Crown
    submits that if this court allows the appeal in respect of the firearms
    charges, the appropriate remedy is to order a new trial so that the
    admissibility of the appellants inculpatory statement can be fully determined.

[40]

In
    his ruling on voluntariness, the trial judge relied on this courts decision in
R. v. Moore-McFarlane
(2001), 56 O.R. (3d) 737 (C.A.) and made the
    following specific findings:

·

the appellant was in custody when the statement was made;

·

recording facilities were readily available;

·

the police deliberately set out to interrogate the appellant
    without giving any thought to the making of a reliable record;

·

the context inevitably makes the resulting non-recorded
    interrogation suspect; and no sufficient substitute for an audio or a
    videotaped record has been provided to satisfy the onus on the Crown to prove
    voluntariness beyond a reasonable doubt.

[41]

These
    findings belie the Crowns general assertion that the trial judge excluded the
    appellants statement solely because it was not recorded. Moreover, given the
    trial judges finding on voluntariness, it was unnecessary that he address the
    appellants
Charter
application.

[42]

Under
    s. 686(2) of the
Criminal Code
, where this court allows an appeal from
    conviction it may direct an acquittal or order a new trial. As this court noted
    in
R. v. Harvey
(2001), 57 O.R. (3d) 296 (C.A.), at paras. 30 and 34,
    where the Court of Appeal allows a conviction appeal on the ground that the
    verdict is unreasonable it will usually order an acquittal. Nonetheless, the
    Crown is entitled to raise alleged errors that it claims inured to the benefit
    of the appellant to support an order for a new trial.

[43]

Based
    on
Harvey
, it would appear that it is customary for any issues raised
    by the Crown to be fully argued and decided in this court. In this case, I am
    not persuaded that the Crown has identified even an arguable ground of appeal
    in relation to the trial judges ruling on the admissibility of the appellants
    statement.

[44]

Accordingly,
    based on the foregoing reasons, I would allow the appeal and set aside the appellants
    convictions. I would order a new trial on the grow operation charges and enter
    acquittals on the firearms charges.

Released:

RJS                                                 Janet
    Simmons J.A.

AUG 29 2014                                   I agree
    Robert Sharpe J.A.

I
    agree G. Pardu J.A.


