



COURT OF APPEAL FOR BRITISH
COLUMBIA




Citation:



R. v. Bi,









2011 BCCA 10




Date: 20110118

Nos:
CA037710; CA037711

Docket: 
CA037710

Between:

Regina

Respondent

And

Luo Zhang Bi

Appellant

Docket:  CA037711

Between:

Regina

Respondent

And

Jian Yi Deng

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Low





The Honourable Madam Justice Garson




On appeal from: 
Provincial Court of British Columbia, July 23, 2009,
(
R. v. Bi and Deng
, Vancouver Docket No. 182552-1)




Counsel for the Appellants:



C. Johnson





Counsel for the Respondent:



V. Hartney





Place and Date of Hearing:



Vancouver, British
  Columbia

November 26, 2010





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2011





Written Reasons by:





The Honourable Mr. Justice Low





Concurred in by:









The Honourable Madam Justice Newbury
The Honourable Madam Justice Garson










Reasons for Judgment of the Honourable
Mr. Justice Low:

[1]

The appellants are husband and wife.  They were convicted by Howard P.C.J.
of unlawful cultivation of marijuana, possession of marijuana for the purpose
of trafficking and theft of electricity.  They admit that they were the
upstairs tenants of a Burnaby house in the basement of which police found a
grow operation, and that the evidence supports the conclusion that they had
knowledge of it.  However, they contend that the evidence was insufficient to
support the conclusion reached by the trial judge that they were parties to the
offences charged.

[2]

The trial courts in this province hear numerous cases involving offences
arising out of the discovery of marijuana grow operations in single-family
residences.  Many of these cases are concerned with whether accused persons
found to be living in the house are criminally implicated in the exposed drug
enterprise.  Evidence that establishes mere knowledge of the criminal conduct
taking place in the residence is not enough.  There must also be evidence from
which it can be inferred that the accused person owned the marijuana crop,
cultivated the crop, aided or abetted somebody else in the criminal operation,
or otherwise had some control over the crop.

[3]

Neither appellant testified.  They called Oy Yen Pat as the only defence
witness.  He is the son of the property owner, Ze Ling Xu.  The judge discussed
his evidence as follows:

[5]        ...
He testified that in early
2007, he was sent by his mother to collect rent from the tenants of this
residence while she was away in Hong Kong.  He attended the residence in early
2007 on two occasions.  He understood that there were two tenants; Mr. Bi and
Ms. Deng in the upstairs, and a person whose name he could not recall, maybe it
was David, who allegedly rented the basement.  Mr. Pat explained that he called
first to say that he was coming to collect the rent.  On both occasions, he
knocked on the front door of the residence and collected rent directly from Mr.
Bi for the upstairs, and on both occasions the downstairs tenant met him
outside the suite or the basement to deliver the rent to him in cash.  Because
he met the downstairs tenant outside, he never looked inside the basement.  He
had no idea there was a marihuana grow operation there.

[6]        Mr. Bi is in fact Mr. Pats
uncle, the brother of Mr. Pat's father.  Mr. Pat explained that his parents had
been divorced for some 15 years.  He had little contact with his father over
those years, and he did not know that Mr. Bi was his uncle although his mother
did.  He only learned this fact from his mother sometime after the execution of
the search warrant at the residence.

[7]        I have not found Mr. Pats
testimony to be particularly

persuasive. 
Even though I am concerned about the reliability of his testimony, I cannot
conclude beyond a reasonable doubt that it must be rejected.  There is no
evidence directly contradicting his testimony or any other evidence that leads
me to conclude beyond a reasonable doubt that Bi and Deng were the only
tenants.  Given this conclusion,
I am proceeding on the basis that there
were two tenants at the residence
, giving the benefit of the doubt to the
accused.  Bi and Deng clearly lived upstairs and rented the upstairs portion. 
The unknown David was the basement tenant.

[8]        Based on the evidence, it would
be clear that David was a full party to the marihuana production and theft of
electricity that was occurring or that consumed his portion of the residence. 
This fact alone does not lead to a reasonable doubt as to the role of the
accused in this operation. However, it is an important fact that must be
considered in context with all the evidence before.


[Emphasis
added.]

[4]

The evidence of Oy Yen Pat did not disprove involvement of the
appellants in the grow operation.  It only served to require the court to
examine the evidence on the basis that there was a separate tenant in the basement
who likely owned the marijuana and had access to it.

[5]

It is reasonable in such cases to start with the premise that the owner
of an illicit marijuana crop in a single-family residence would take steps to
ensure that occupants of the premises would be people not disposed to report
the illegal activity to the police.  To that end, the owner of the marijuana
might well employ the occupants as gardeners of the crop or give them a
security role, or both.

[6]

Police officers executed a search warrant at the house on 4 April 2007. 
The appellants and their teenage son lived on the main floor and all of them
were home at the time of the search.  The entire basement was used for the
production of marijuana.  There were 375 marijuana plants, 132 grams of dried marijuana
bud and six grams of marijuana shake.  The value of the plants was between
$105,000 and $281,250.

[7]

The residence was of modest size.  On the main floor, there were two
bedrooms, one bathroom, a kitchen, living room and dining room.  There was an
odour of marijuana within this living area and fans used in the production of
marijuana in the basement could be heard.  There was condensation on many of
the windows on the main floor.  These facts compelled the concession that the
appellants had knowledge of the grow operation in the basement.

[8]

The trial judge described the evidence with respect to basement access:

[4]        I
begin by noting that in terms of the structure of the residence, access to the
upper floor from the basement level would normally have been available through
a stairway that ran from the basement up into the kitchen area.  However, when
the police attended, that stairwell was blocked by equipment, pipes, exhaust
pipes, and ducting related to the marihuana operation.  So the basement was not
accessible from the upstairs kitchen area through these stairs.  The police did
find a key that opened the exterior door to the basement.  It was found in a
drain pipe near to the basement door.


[9]

The hydro meter was on the outside of the south wall of the house just
above the ground.  Opposite the meter inside the basement there was an
unauthorized electrical by-pass.  There was evidence of an estimated loss of
hydro billing in the amount of $2,853.60.

[10]

In the living room, police found a current hydro bill and a current natural
gas bill, both in the name of the owner, Ze Ling Xu.

[11]

After noting, as was conceded, that both accused had knowledge of the
marijuana operation, the trial judge discussed the additional evidence that
tended to link the appellants with the illicit activity in the basement:

[10]
There were three other evidentiary
links between the upstairs tenants and the basement.  In one of the basement
rooms, the police located an overflowing ashtray full of cigarette butts; there
were two types, Players and a Chinese cigarette called Double Joy, I think is
the word.  If I have not got that correct, it is Double something.  The officer
confirmed that both cigarettes, both the Players cigarettes and this particular
brand of Chinese cigarettes were very common; the latter being common in the
Chinese community.  In the upstairs area where the accused live, the police
located cartons of cigarettes, Players and Double Joy.  The defence position is
that this may be mere coincidence given that the two brands are so popular. 
The Crown points out, fairly, that there are only two brands of cigarettes
found in the residence and both are located in the upstairs portion and the
downstairs portion of the residence.

[11]      In addition, there was a very
amateurish video

surveillance
system set up in the upper bedroom -- upstairs bedroom of the son of Ms. Deng. 
A hole was drilled through the drywall of the back wall of his bedroom, all the
way through the exterior wall of the back of the house.  Just around the corner
from this hole at the side of the house on the ground hidden amongst bricks was
a video camera pointing down this side of the house.  The video camera captured
the pathway from the front of the house to the rear.  It also captured that
area where the Hydro metre was located.  This is the metre that would be
checked by Hydro employees on a monthly or bi-monthly basis, and it is the same
metre that would be checked by Hydro employees during a possible investigation
or during an investigation of possible Hydro theft.  A cable ran from the video
camera up the back wall of the house, through the hole in the wall into the
bedroom and then from there to a VCR device and a monitor in the bedroom. When
the police entered the residence to execute the search warrant, the monitor was
on and the side of the home could be seen on the screen.

[12]      Thirdly, in the upstairs area of
the house, the police found a bag of marihuana in the butter section of the
refrigerator door.  It was ten grams of marihuana and it was described by one
officer as suitable for smoking.  This marihuana would be observable or
visible to anyone opening the refrigerator door.

[13]      The Crown relies upon the above
pieces of evidence in support of its position that Bi and Deng were not only knowledgeable
about the marihuana operation in the basement, but they were also parties to
that operation.

[14]      The
defence position is that there are innocent explanations for each of the above
three pieces of evidence and that the evidence as a whole does not establish
beyond a reasonable doubt that the accused had any measure of control over the
downstairs operation that, at a minimum, clearly belonged to the downstairs
tenant.  At best, it establishes passive acquiescence to an illegal activity
occurring in a part of the residence over which they had no control.

[12]

The judge also took into account the value of the marijuana operation,
including the product and the equipment, in considering whether the owner of
the operation would be content to have upstairs tenants exercising no control
over it.

[13]

Finally, the trial judge explained her conclusion that each of the
appellants was a party to the offences charged:

[17]
In my view, all of the evidence
taken as a whole, leads to only one conclusion.  That is that the only
reasonable inference to be drawn is that the accused were indeed parties to the
offences that were occurring in the basement of the residence.  Again, the
factors that have led me to this conclusion are the fact that the accused had
to have known about the illegal operation because of the odour and the sounds
from the basement, the presence of marihuana in the butter dish on the door of
the fridge in the accused upstairs residence, the fact that only two types of
cigarettes were found in the residence and both of these, Players and Double
Joy, were found in the accused portion of the residence and in the basement,
the key to the basement that was hidden in the drain pipe near the basement
door which would have been accessible -- which key would have been accessible
to the downstairs tenant and the accused, the video surveillance camera
operated from the back bedroom of the son of Ms. Deng, which was aimed at the
same walkway where the Hydro metre was placed, and the unlikely prospect that
the downstairs tenant would set up this valuable operation in the basement of
this residence without the cooperation or participation of the accused who
lived in the upstairs portion.

[18]      In the
end, I am satisfied beyond a reasonable doubt on all of this evidence, that the
accused were indeed parties to the offences before the court.  The evidence of
control, although circumstantial, has been established beyond a reasonable
doubt.

[14]

Thus the judge concluded that, together with the basement tenant, the
appellants were parties to the crimes committed.

[15]

The appellants contend that the trial judge erred in para. 16 of her
reasons by stating that it was a common sense inference that the downstairs
tenant would want the upstairs tenants to participate in the illicit operation. 
The argument is that this imported the law as to the presumption of intent into
determining a fact other than intent.

[16]

I do not see the use of the phrase in its context to be a flaw in the
reasoning of the judge.  The ensuing sentence begins with the phrase (f)rom a
common sense perspective.  It is clear to me that the judge simply applied
ordinary human experience in her assessment of the evidence.  There was no
speculative reasoning.  As I have said above, it is common sense reasoning in
cases such as this that the owner of the marijuana-grow operation would want
exclusive residents of the premises to be involved in some aspect of the
operation.  That is part of the context in which the trial judge analysed the
evidence in this case.

[17]

The appellants argue that this court should set aside the verdicts of
the trial judge under s. 686(1)(a)(i) of the
Criminal Code of Canada
on
the basis that they are unreasonable or cannot be supported by the evidence. 
The test under that section was stated in
Corbett v. The Queen
, [1975] 2
S.C.R. 275, at 282: The function of the court is not to substitute itself for
the jury, but to decide whether the verdict is one that a properly instructed
jury acting judicially, could reasonably have entered.

[18]

The test was confirmed in
R. v. Yebes
, [1987] 2 S.C.R. 168 and in
R. v. Biniaris
, [2000] 1 S.C.R. 381.  In
Biniaris
, Arbour J.
added this:

[37]      The
Yebes
test
is expressed in terms of a verdict reached by a jury.  It is, however, equally
applicable to the judgment of a judge sitting at trial without a jury.  The
review for unreasonableness on appeal is different, however, and somewhat
easier when the judgment under attack is that of a single judge, at least when
reasons for judgment of some substance are provided. In those cases, the
reviewing appellate court may be able to identify a flaw in the evaluation of
the evidence, or in the analysis, that will serve to explain the unreasonable
conclusion reached, and justify the reversal.

[19]

At para. 17 of her reasons, the trial judge stated that the only
reasonable inference to be drawn from the whole of the evidence is that the
appellants were parties to the offences charged.  This conclusion contains a
correct instruction as to the applicable law.  The judge had to ask herself
whether the only reasonable inference to be drawn from the proven facts was
that each appellant was guilty:
R. v. Cooper
(1977), 34 C.C.C. (2d) 18
(S.C.C.).  It is trite law that the court must consider the circumstances
cumulatively and not isolate each one and consider it separately.

[20]

The question of control over the marijuana applies only to the
possession count.  This can involve the question of proof of constructive
possession under s. 4(3) of the
Criminal Code
.  But that question need
not be specifically addressed if the Crown proves that the accused was a party
to the offences charged  as a principal offender or as an aider or abettor. 
As I read the trial judges reasons, she found that the only reasonable
inference to be drawn from the whole of the evidence was that each of the
appellants was a party to each of the offences charged.  She did not have to
determine whether each was a principal, an aider or an abettor, only that each
was one or the other. The evidence established to her satisfaction that each
appellant was a principal or was otherwise a party to the offences.

[21]

In my opinion, the evidence as a whole supported the conclusion reached
by the trial judge that each of the appellants was a party to the offences
charged.  They were the tenants in the small home in which the grow operation
was discovered by the police and they had knowledge of the operation.  On the
floor they occupied, there was an electronic surveillance system set up to monitor
the location of the hydro meter, obviously a measure designed to provide
security for the criminal activity below.  Marijuana was in plain view in the
refrigerator upstairs.  The appellants had ready access to a key for the
outside basement door and therefore had ready access to the grow operation.  In
the basement there was an ashtray full of cigarette butts of the same two
brands contained in cigarette packages found upstairs.

[22]

There was expert evidence that the crop was valuable and would have
required tending at least every two days to maintain the plants.  The
environment was carefully controlled and advanced cultivation techniques were
in use.  The plants were in good condition.  These things suggest regular
attention to the crop consistent with at least some of the cultivation being
done by residents in the house.

[23]

Absent an innocent explanation capable of raising a reasonable doubt,
the cumulative effect of these circumstances is to compel the conclusion that
the appellants were parties to the cultivation and possession of the marijuana
and to the theft of electricity.  There was no flaw in the reasoning of the
trial judge and the evidence supported the convictions.

[24]

I would dismiss each appeal.

The
Honourable Mr. Justice Low

I agree:

The
Honourable Madam Justice Newbury

I agree:

The Honourable Madam Justice Garson


