



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nguyen, 2016 ONCA 182

DATE: 20160303

DOCKET: C56689/C57666

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant (Respondent)

and

Tan Tien Nguyen

Respondent (Appellant)

Kathleen Healey and Ruth McGuirl, for Her Majesty the
    Queen

J. Randall Barrs Q.C. and Patrick Ducharme, for Tan Tien
    Nguyen

Heard: November 19, 2015

On appeal from the acquittal
    and from the convictions entered on February 1, 2013, with reasons reported at
    2013 ONSC 605, and the sentence imposed on September 26, 2013, with reasons
    reported at 2013 ONSC 6913, by Justice Leonard Ricchetti of the Superior Court
    of Justice, sitting without a jury.

Pardu J.A.:

A.

Introduction

[1]

The appellant, Tan Tien Nguyen, was found guilty after trial of
    conspiracy to commit the offences of possession of marihuana for the purpose of
    trafficking and production of marihuana, and the substantive offences of
    possession of marihuana for the purpose of trafficking and production of marihuana.
    The appellant was acquitted of the charge of money laundering.

[2]

He was sentenced to 20 months concurrent incarceration on the
    conspiracy counts. The convictions on the substantive charges were stayed on
    the basis of
Kienapple v. The Queen,
[1975] 1 S.C.R. 729. The
    appellant was also subjected to a forfeiture inquiry, ordered to pay a fine of
    $2,809,211.40 in lieu of forfeiture of certain property
[1]
,
    and ordered to forfeit a number of items, including his family and business
    properties.

[3]

The appellant appeals his convictions, forfeitures and the fine in lieu
    of forfeiture on the basis that the verdicts are unreasonable and unsupported
    by the evidence and that the trial judge erred in law in coming to the guilty
    verdicts.

[4]

The Crown appeals the acquittal on the money laundering count.

[5]

For the reasons set out below, I would allow the appellants appeal,
    quash the convictions on the two conspiracy counts,

lift the stay of the two substantive counts, and impose the
    sentence and related orders imposed by the trial judge, that is 20 months
    incarceration concurrent on each of the counts of production of marihuana and
    possession for the purpose of trafficking in marihuana. I would dismiss the
    Crown appeal.

B.

Facts

[6]

The appellant was the proprietor of a garden supply business, All Seasons
    Garden Supply (ASGS). Within the four-month timeframe specified in the
    indictment, the appellant had one employee, Son Van Nguyen (Son), his
    brother-in-law. Son was involved in dealing with customers, physical labour,
    loading and unloading of vehicles, disposing of waste into the dumpster, and
    using ASGSs vehicles for business purposes.

[7]

The appellant had numerous properties and vehicles associated with him,
    including 1000 Dundas Street East in Mississauga where he operated ASGS. The
    products the appellant sold included fertilizer, pesticides, pots, lights, and
    devices to remove ambient odours. Some products, though, were more atypical of
    a garden supply store, including timers, ballasts, electromagnetic switches and
    electrical circuit panels. None of the products sold was illegal to possess.

[8]

The business operated in a manner such that there were no records
    identifying customers names and addresses, or what products they bought, or
    linking ASGS to any particular items sold. Customers were allowed to use the ASGS
    delivery van, a 2002 white Dodge Caravan (the Caravan), to take home
    purchases without a record of who had the van, where they were going, or when
    they would be coming back. Customers paid cash. Delivery was often effected in
    a way that concealed what supplies were being transferred. Customers would back
    up their vehicles to the door of the store and purchases that were hidden in
    opaque garbage bags were then loaded into their vehicles.

[9]

Unidentified customers left with the products and went elsewhere. Customers
    came from southern Ontario, Montreal and England. There was no evidence of any
    link between the customers themselves. Except for four instances where
    customers were followed to locations later discovered to harbour grow operations,
    there was no evidence about what the customers actually did with whatever products
    they purchased.

[10]

Beginning
    in June 2009, police commenced surveillance on the appellant and his business.
    During surveillance, police followed ASGS customers and deliveries made using
    the Caravan. The appellant was eventually arrested and charged with the
    offences noted on the basis of the police investigation of the appellants
    business practices and, in particular, the discovery of four marihuana grow
    operations linked to four ASGS customers.

C.

THE Trial judges reasons

[11]

The
    appellants position at trial was that the Crown had not established beyond a
    reasonable doubt that he conspired with others and that he knew or intended
    that his products and services would be used in marihuana grow operations for
    the production of marihuana or possession of marihuana for the purpose of
    trafficking, and further, that it is not an offence to sell products that are
    legally for sale in Canada.

[12]

Although
    the indictment charged the appellant as a principal, the Crowns theory at
    trial was that the appellant aided and/or abetted the commission of the
    offences by providing one-stop shopping for marihuana producers.

[13]

It
    is unnecessary to review the trial judges findings of fact exhaustively here,
    but in short, he found the appellant was not credible or reliable and rejected his
    evidence that he did not know or intend that his products would be used for
    marihuana production. The trial judge largely accepted the evidence of the Crown
    witnesses  police officers detailing the investigation into the appellant, and
    Constable Smith, who gave expert evidence that the appellant sold products suitable
    for use in marihuana grow operations.

[14]

The
    trial judge defined the issues at paras. 274-75 of his reasons:

The Crown must prove the following beyond a reasonable doubt:

a) On the conspiracy to aid and
    abet counts, that Mr. Nguyen:

·

intended to enter into an agreement with others to aid and abet
    marihuana grow operators production and possession of marihuana for the
    purpose of trafficking by supplying them with a one stop shop for purchasing
    marihuana grow operation products, in a clandestine, no-names basis,
    no-questions asked basis, to provide delivery assistance where needed without
    the need to disclose the identity of the customer or the location of the
    marihuana grow operation and to provide waste disposal assistance from the
    customers marihuana grow operations (the Products and Services);

·

did enter into the above agreement; and

·

intended to put the above agreement into effect.

b) On the aiding and abetting
    counts, Mr. Nguyen:

·

Knew he was helping or facilitating marihuana grow operators in 
    their marihuana grow operations by supplying Products and Services;

·

intended to help or facilitate marihuana grow operators in their
    marihuana grow operations by supplying them with the Products and Services; and

·

did help or facilitate the marihuana grow operations by providing
    the Products and Services.

The above can be broken down into the following questions:

(i) Did Mr. Nguyen
know
he was supplying the Products and Services to
    persons for marihuana grow operations?

(ii) Did Mr. Nguyen
intend
to supply the Products and Services to persons
    for marihuana grow operations?

(iii) Did Mr. Nguyen
enter into an agreement with Son Van and others
to
    supply the Products and Services to persons for marihuana grow operations?

(iv) Did Mr. Nguyen
carry out the agreement
to supply the Products and
    Services to persons for marihuana grow operations?

(v) Did Mr. Nguyen
know
the supply of Products and Services to marihuana
    grow operators would help or assist the marihuana grow operations?

(vi) Did Mr. Nguyens supply of Products
    and Services
help or facilitate
the marihuana grow
    operations? [Emphasis in original.]

[15]

He
    concluded that the appellant knew he was supplying, and intended to supply,
    products to marihuana grow operators, that the appellant and Son were party to
    an agreement to provide products for marihuana grow operations, and finally, that
    customers attending at the store were parties to the same agreement. This
    formed the basis for the finding of guilt on the conspiracy charges.

[16]

He
    also found that the operation of the appellants business, in general, helped
    or facilitated marihuana grow operations in several ways:

·

It helped avoid detection by the police;

·

It helped marihuana grow operators purchase products with the
    minimum number of persons knowing of their location or operations  the benefit
    of the one-stop shop;

·

The products were directly used in the marihuana grow operations
    to grow marihuana;

·

It helped the marihuana grow operators dispose of their marihuana
    grow operation waste; and

·

It helped marihuana grow operators with ready-made products such
    as the timer boards and the purchase of used products needed for marihuana grow
    operations.

[17]

He
    also found that the appellant knew, in general, that his business activities
    would assist in the production of marihuana and possession of marihuana for the
    purpose of trafficking. These findings formed the basis for the appellants
    convictions on the substantive offences.

[18]

The
    trial judge acquitted the appellant of money laundering on the ground that it
    would be speculation to find that the purchase monies for certain properties
    came from the production of marihuana. He concluded that it was highly possible
    that substantial amounts or all of the monies came from the garden supply
    business, and not from the production of marihuana.

D.

the CONVICTIONS appeal

(1)

Aiding and Abetting a Conspiracy

[19]

Because
    the charge of conspiracy proceeded on the basis that the appellant aided and
    abetted principals in the commission of an offence, it comes squarely within
    the scope of the Supreme Court of Canadas decision in
R. v. J.F.
,
    2013 SCC 12, [2013] 1 S.C.R. 565, released after the trial judges decision in this
    case. The trial judge characterized the issue as whether the Crown had proven
    the appellant intended to and did enter into an agreement with others to aid
    and abet marihuana grow operators production and possession of marihuana for
    the purpose of trafficking by supplying them with a one stop shop for purchasing
    marihuana grow operation products: para. 274(a). This characterization brings
    the basis for conviction into conflict with the decision in
J.F.
,
    which holds that aiding a conspiracy to achieve its unlawful object(s) does not,
    on its own, make someone a party to the conspiracy.

[20]

In
J.F.
, the court had to choose between two conflicting lines of
    authority dealing with the elements of being a party to a conspiracy. The court
    approved of the narrower view of party liability for conspiracy expressed in
R.
    v. Trieu
, 2008 ABCA 143, 429 A.R. 200, affg
R. v. Lam
,

2005
    ABQB 849, that party liability to conspiracy is established only if someone
    encouraged or assisted the initial formation of the agreement, or encouraged or
    assisted new members to join a pre-existing agreement. The court also referred,
    at para. 51, to
R. v. Alexander
(2005), 206 C.C.C. (3d) 233 (Ont. C.A.),
    paras. 46-47, with approval:

The appellants submissions stand on firm legal footing. The
actus
    reus
of the crime of conspiracy lies in the formation of an agreement,
    tacit or express, between two or more individuals, to act together in pursuit of
    a mutual criminal objective. Co-conspirators share a common goal borne out of a
    meeting of the minds whereby each agrees to act together with the other to
    achieve a common goal.

It follows from the mutuality of objective requirement of the
actus
    reus
that a conspiracy is not established merely by proof of knowledge of
    the existence of a scheme to commit a crime or by the doing of acts in furtherance
    of that scheme. Neither knowledge of nor participation in a criminal scheme can
    be equated with the
actus reus
of a conspiracy: see
R. v.
    Lamontagne
(1999), 142 C.C.C. (3d) 561 (Que. C.A.), at 575-76;
R. v.
    Cotroni
,
supra
, at pp. 17-8. Knowledge and acts in furtherance of
    a criminal scheme do, however, provide evidence, particularly where they
    co-exist, from which the existence of an agreement may be inferred. [Emphasis
    omitted.]

[21]

In
    an article entitled Conspiracies and Attempts in the National Criminal Law
    Program,
Substantive Criminal Law
(1990), vol. 1, Doherty J.A. (then
    of the Supreme Court of Ontario) traced the roots of the requirement of a
    mutual object in a criminal conspiracy. He began, at p. 24, with a quotation from
R. v. Cotroni
(1979), 45 C.C.C. (2d) 1 (S.C.C.), at pp. 17-18:

The important inquiry is not as to the acts done in pursuance
    of the agreement but whether there was a common agreement to which the acts are
    referable and to which all of the alleged offenders were privy.



There must be evidence beyond a reasonable doubt that the
    alleged conspirators acted in concert in pursuit of a common goal.

[22]

He
    demonstrated how the mutuality of object doctrine set out in
Cotroni
had been applied in more commonplace situations, at pp. 24-26:

In subsequent cases, the mutuality of object doctrine set out
    in
Cotroni
has been applied to two more commonplace fact situations.
    The first involves so-called bilateral crimes, such as trafficking, where the
    Crown has argued that an agreement by B to sell to C renders B and C
    co-conspirators. The second involves those cases where the Crown alleges a
    general conspiracy of wide proportions, and the accused maintains he was
    involved in a much more restricted criminal agreement to commit the same crime.

In the first situation,
Cotroni
is taken as requiring
    some mutual purpose beyond Bs intention to sell and Cs intention to buy.
    In the second situation, the mutuality of object approach requires that each
    accused be privy to and agree to the larger scheme, although not necessarily to
    all of the details.

R. v. Kelly
offers an example of the application of
    the mutuality of object definition to a bilateral agreement to buy and sell.
    S offered to sell a narcotic to K, knowing that K intended to resell the
    drugs. The conduct of S constituted trafficking; K intended to engage in an
    act of trafficking as well. The overall course of conduct contemplated by S
    and K involved two separate, albeit inter-dependent, acts of trafficking.
    There was not a single object. They had not agreed to pursue a common object,
    but rather each had their own object. After a detailed review of the
    authorities, the Court of Appeal acquitted Kelly on an application of the
    mutuality of object approach to the crime. [Footnote omitted.]

[23]

Doherty
    J.A. went on to cite, at pp. 27-28,
R. v. Longworth
(1982), 67 C.C.C.
    (2d) 554 (Ont. C.A.), for the proposition that proof that a person was a party
    to a conspiracy required proof not only of
knowledge
of the wider scheme, but adherence to the
object
of the wider scheme:

In
R. v. Longworth et al.
, the Crown charged a
    conspiracy, extending over three years, to traffic in a narcotic. N, one of
    the accused, was involved in a single purchase from W, the alleged
    distributor. The amount of the purchase suggested N intended to resell at
    least part of the amount he purchased. There was no other evidence of Ns
    involvement in Ws network although it could be inferred that he knew his
    purchase was not Ws only sale. The Courts attempt to rationalize
    conflicting authorities produces some confusion between the concepts of
    agreement and common design. In the end, however, the Court clearly requires
    proof of a joint determination to pursue the overall distribution scheme. The
    Court held that N was not a party to the wide agreement alleged and could not
    be convicted on the basis of his proved involvement in a conspiracy to commit
    the same crime but on a much more limited scale. [Footnotes omitted.]

[24]

The
    court in
J.F.
likewise

highlighted the distinction between
    being a party to the initial agreement to commit an offence and taking steps to
    further the criminal object, citing with approval, at para. 46, the following
    passage from Developments in the Law: Criminal Conspiracy (1959), 72 Harv. L.
    Rev. 920, at pp. 934-35:

But to aid and abet a crime it is necessary not merely to help
    the criminal, but to help him in the commission of the particular criminal
    offense.  A person does not aid and abet a conspiracy by helping the
    conspiracy to commit a substantive offense, for the crime of conspiracy is
    separate from the offense which is its object.  It is necessary to help
    the conspiracy in the commission of the crime of conspiracy,
that is, in the commission of the act of agreement
. Only
    then is it justifiable to dispense with the necessity of proving commission of
    the act of agreement by the defendant himself.  In all other cases, to
    convict the defendant of conspiracy it is necessary to prove not only knowledge
    on his part that he was helping in a wrongful enterprise, but also knowledge on
    anothers part that he intended to do so, and at least a tacit agreement to
    give and accept such help. [Emphasis added; footnotes omitted.]

[25]

That
    is not to say that steps taken in furtherance of the criminal object are
    irrelevant to the question of the existence of a common agreement. It is well
    understood that evidence of the existence of an agreement is often not express
    or direct, but rather must be inferred from individual events, relationships
    and circumstances that in their cumulative effect, properly estimated in the
    light of all surrounding circumstances, may raise a presumption of concerted
    purpose entitling the jury to find the existence of the unlawful agreement:
Paradis
    v. The King
,

[1934] S.C.R. 165, at p. 168.

[26]

Therefore,
    acts done in furtherance of an unlawful act can present powerful circumstantial
    evidence in support of a finding that an agreement exists: see
R. v. Blake
(2005), 206 C.C.C. (3d) 233 (Ont. C.A.), leave to appeal refused, [2005]
    S.C.C.A. No. 526. Those acts on their own, however, do not make an accused a
    party to the offence of conspiracy.

(2)

Does the Evidence Establish the Existence of a Conspiracy?

[27]

It
    is apparent, in my view, that the trial judge based his finding of the
    existence of a conspiracy on the fact that the appellants products and
    services had the
effect
of aiding and abetting unspecified
    marihuana grow operators with their operations, by providing one-stop shopping
    for products and services on an anonymous basis. In other words, the
    appellants actions furthered the objective of marihuana grow operators in
    general. The trial judge appears to have applied the broader view of party
    liability for conspiracy which has now been rejected by the Supreme Court of
    Canada. This was an error.

[28]

As
    the Crown fairly points out, however, if the circumstantial evidence is such
    that, even applying the narrower view of party liability endorsed in
J.F.,
the
    existence of an agreement is established, then the error might not constitute a
    reversible error. That is, if, on the evidence, a conspiracy is established,
    then the trial judges error will be immaterial to the result. The question is
    therefore whether the evidence gives rise to an inference of the existence of a
    common agreement, or a mutual criminal objective, between the appellant, Son
    and the marihuana grow operators to produce marihuana or possess marihuana for
    the purpose of trafficking, as the indictment specifies. In my view, it does
    not.

[29]

There
    was no evidence to establish when, where, and on what terms an agreement to
    produce marihuana or possess marihuana for the purpose of trafficking existed
    and no evidence that the appellant shared in the proceeds from cultivation of marihuana
    by store customers. Here, unknown purchasers, unrelated to each other, purchased
    unknown legal products from the appellant and did something with them
    somewhere, likely ultimately connected with a marihuana grow operation. They
    also sometimes made use of his company van and disposed of items in his
    dumpster, although it was often Son, and not the appellant, who was directly
    involved in providing these services.

[30]

The
    trial judge made a finding that the appellant knew his products were being used
    by marihuana grow operators in their production of marihuana, a finding which
    was certainly open to him on the evidence. However, in my view, it cannot be
    enough that the appellant sold legal items that he knew could be used for illegal
    purposes  and likely were being so used  to infer the existence of a common
    agreement.

[31]

Other
    jurisdictions have struggled with the issue of whether the sale of goods
    otherwise lawful to possess makes the vendor guilty as a party to conspiracy
    when he knows the purchaser will use the goods for some illicit purpose. These
    cases have to be approached with caution because of different statutory
    regimes, but they illustrate a discomfort with extending the reach of
    conspiracy so far.

[32]

One
    interesting example is
U.S. v. Falcone
, 109 F. 2d 579 (2nd Cir. 1940).
    In that case, distributors sold sugar, yeast and cans used in illegal
    distilleries, knowing of the illegality of the purpose to which the products
    would be put. The Second Circuit Court of Appeals concluded that the seller of
    goods does not become a conspirator or an abettor merely because he sells goods,
    which are in themselves innocent, even if he knows that the buyer intends to
    use the goods to commit a crime. Rather, the seller must make the venture his
    own before he will be guilty as a conspirator or abettor.

[33]

Learned
    Hand J. said for the court, at p. 581:

It is not enough that he does not forego a normally
    lawful activity, of the fruits of which he knows that others will make an
    unlawful use; he must in some sense promote their venture himself, make it his
    own, have a stake in its outcome. The distinction is especially important today
    when so many prosecutors seek to sweep within the drag-net of conspiracy all
    those who have been associated in any degree whatever with the main offenders.
    That there are opportunities of great oppression in such a doctrine is very
    plain, and it is only by circumscribing the scope of such all comprehensive
    indictments that they can be avoided. We may agree that morally the defendants
    at bar should have refused to sell to illicit distillers; but, both morally and
    legally, to do so was toto coelo different from joining with them in running
    the stills.

[34]

The
    decision was affirmed on certiorari to the United States Supreme Court, which
    held that the sale of the goods did not make the vendors part of the conspiracy
    to distill liquor, even though the sale may have furthered the object of the
    conspiracy to which the distiller was a party, and even though the vendor knew
    the goods would be used for that purpose.

[35]

Another
    example is
R. v. Kenning
, [2008] EWCA Crim 1534. The accused were
    charged with conspiracy to aid and abet production of marihuana and conspiracy
    to counsel production of marihuana. Two of the accused owned a business selling
    hydroponic equipment, cannabis seeds, and cannabis-related literature. They had
    posted a notice in the store informing customers that it was illegal to
    cultivate cannabis. However, equipment from the appellants store was found on
    premises where cannabis was being produced. Undercover police officers went to
    the store on two occasions and expressed an interest in growing plants. The
    appellants advised the officers that they could provide the necessary supplies,
    as well as anti-detection measures. On this evidence, the appellants were
    charged. The court described the basis for the charges as follows, at para. 11:

These facts, which were adduced in evidence
    before the jury, posed a problem for the prosecution. The items purchased from
    The Hydroponic Centre that had been used by the purchasers to grow cannabis
    might equally have been used to grow plants that could be grown lawfully. There
    was thus no basis upon which the appellants could have been charged with aiding
    and abetting the production of cannabis simply because [they] had sold the
    items in question. So far as the undercover police were concerned, the evidence
    demonstrated that the appellants were prepared to aid and abet them to commit
    the offence of growing cannabis, but this did not of itself amount to any
    offence. The prosecution decided that the answer to their problem was to bring
    charges in the form of [conspiracy to aid and abet the production of marihuana
    and conspiracy to counsel the production of marihuana].

[36]

The
    court concluded, however, that an agreement to aid and abet an offence was not
    in law capable of constituting a criminal conspiracy.

[37]

Similarly,
    in
R. v. Dang
, [2014] EWCA Crim 348, the court noted in relation to
    hydroponic equipment suppliers, at para. 19:

No question arises as to whether the defendant
    aids and abets the production of cannabis. Before they could convict of
    conspiracy to be concerned in the production of cannabis by another, the jury
    had to be sure that the defendant whose case they were considering joined a
    conspiracy knowing that its objective was to provide equipment for the
    production of cannabis by another and that when he joined it the defendant
    shared that intention. As the trial judge put it: There has in each
    defendant's case to be a specific intention that the production of cannabis by
    another should and would take place. A generalised awareness that the
    equipment may be used for the unlawful purpose would not suffice.

[38]

Ultimately,
    convictions in
Dang
were sustained on the ground that the conspiracy
    related to the statutory offence of being concerned in the production of
    cannabis by others.

[39]

In
R. v. Jones
, [2010] EWCA Crim 925, the appellant was charged with
    incitement to produce marihuana. He ran a shop which sold smoking paraphernalia
    and hydroponics equipment which could be used to produce marihuana. In
    addressing whether the words or actions of the accused amounted to a positive
    step toward inciting another to commit a crime, the court noted, at para. 19:

It [is] common ground that the offering of goods for sale which
    can be used for an illegal purpose is not enough. Thus, shops such as Grow
    Republic, are not breaking the law simply by doing so, in the same way that a
    gardening centre would not be breaking the law by selling hydroponic equipment
    which could be used either for the production of herbs or for cannabis. What is
    important is the existence of specific evidence of incitement to commit the
    offence: although the make up of the shop provides the context, the language
    used by the appellant is also critical.

[40]

The
    court went on to find that the words of the appellant, put in the context of
    the business he ran, amounted to the appellant teaching others how to cultivate
    marihuana. While the offence at issue in
Jones
was not conspiracy, the
    courts comments to the effect that it is not a crime to sell legal goods, even
    knowing that they may ultimately be used for an illegal purpose, are nevertheless
    instructive.

[41]

Indeed,
    the case of
Trieu
, cited approvingly by the Supreme Court in
J.F.
,
    involved a scenario of the sale of legal goods to those who would use those
    goods for illegal ends. Trieus business was selling cellular phones. He sold
    phones to five people whom he knew to be engaged in drug trafficking as a group
    and who he knew would use the phones in their trafficking operation. The trial
    judge acquitted Trieu and the Alberta Court of Appeal upheld the acquittal.

[42]

The
    facts of
Trieu
are indistinguishable from the present case. The Crown
    could not point to any factor in this case suggesting that it should be treated
    differently. On this kind of evidence, the appellant could not be found guilty
    as a party to the conspiracy, even if he knew that his products would help marihuana
    grow operators.

[43]

In
    my view, the general fact that the appellant operated a garden supply store, even
    knowing that nearly all of his customers wanted the products for marihuana grow
    operations, is not sufficient in itself to make him a party to a conspiracy to
    produce marihuana or possess marihuana for the purpose of trafficking for the
    following reasons:

·

There is no evidence of an overarching agreement to produce marihuana
    or possess marihuana for the purpose of trafficking to which Son and ASGSs customers
    were parties. There is no evidence of a mutuality of purpose amongst the
    appellant, Son, and the unknown purchasers, and no common enterprise of
    production of marihuana or possession of marihuana for the purpose of
    trafficking, the conspiracy charged.

·

There is, in general, no evidence of what ASGSs purchasers
    ultimately did with whatever they purchased.

·

In the event that any of the purchasers did use the products in a
    marihuana grow operation, there is no evidence that the appellant had any stake
    in those grow operations.

·

The transactions to which the appellant might have been a party
    through his business were separate agreements of purchase and sale of legal
    products.

·

Whatever use the purchasers made of the unknown garden supply
    products, it was too remote from the appellants businesss sales to them.

·

The conspiracy charged was an agreement to produce marihuana or
    possess it for the purpose of trafficking. This is different from the
    conspiracy found, an agreement to aid and abet marihuana grow operators.

[44]

This
    is not a case of a hierarchical multi-level organisation devoted to the sale of
    drugs in which many different individuals played different roles, but all
    subscribed to a common goal. In short, there was no mutuality of objective. The
    appellants goal in all this was, it appears, to sell more of his products and
    offer services and conditions to keep customers coming back. Indeed, the trial
    judge found as much, at para. 307 of his reasons:

I am satisfied beyond a reasonable doubt that Mr. Nguyens
    knowledge and intention that the sale of the Products and Services, would help
    or facilitate persons in their marihuana grow operations in the production and
    possession of marihuana for the purpose of trafficking. Mr. Nguyen did so for
    the obvious and clear motivation, making profit on the sale of his products.

[45]

For
    these reasons, I would overturn the trial judges decision on the two
    conspiracy counts and enter acquittals.

(3)

Aiding and Abetting the Substantive Offences

[46]

The
    appellant was convicted of the substantive offences of production of marihuana
    and possession of marihuana for the purpose of trafficking on the basis that,
    through his garden supply business, he aided and abetted marihuana grow
    operations. After concluding that Mr. Nguyen knew and intended that the sale of
    his products and services would help or facilitate marihuana grow operators in
    the production of marihuana and possession of marihuana for the purpose of
    trafficking, the trial judge held, at para. 308:

Mr. Nguyens actions actually resulted in assisting and
    facilitating the production of large quantities of marihuana. That is the
    purpose of the products he sold  to help in the production of large quantities
    of marihuana. The successful result of Mr. Nguyens assistance to these
    marihuana grow operators can be seen from the four locations of ASGS customers
    where the police discovered large marihuana grow operations.

[47]

Under
    s. 21(1) of the
Criminal Code
,

R.S.C. 1985, c. C-46, every
    person is a party to an offence who:

(
a
) actually
    commits it;

(
b
) does or
    omits to do anything for the purpose of aiding any person to commit it; or

(
c
) abets any
    person in committing it.

[48]

As
    is evident from the section, before someone can be convicted for an offence as
    a party, the underlying offence must have been committed.
[2]
This point was underscored in
J.F.
,

at para. 24: In order
    for the Crown to rely on party liability, the underlying offence must have been
    committed by the principal.

[49]

In
    contrast to aiding and abetting, s. 464 of the
Criminal Code
specifically
    provides for the offence of counselling an offence not committed.

[50]

It
    follows, then, that for a party to aid or abet a principal, there must be
    evidence that the party provided actual assistance to the principal by doing
    something that assisted the principal to commit the offence or encouraged the
    principal to do so. Absent proof of a predicate offence, conviction on the
    basis of aiding or abetting cannot be sustained.

(a)

The Trial Judges Findings

[51]

On
    the basis of the evidence the trial judge accepted, the appellant knew in
    general he was helping or facilitating marihuana grow operators in their
    operations and intended to help or facilitate marihuana grow operators in their
    grow operations. In order for the acts of the appellant to amount to aiding and
    abetting, however, there must be a finding that (1) the offences of production
    of marihuana and possession of marihuana for the purposes of trafficking
    occurred; and (2) the appellants assistance (through acts or omissions) can be
    linked to the commission of the offence such that he actually assisted in the
    commission of the offence.

(b)

Specific Grow Operations with Some Connection to the Appellants
    Business

[52]

The
    trial judge discussed four specific ASGS customers who were followed and who,
    on the evidence he accepted, were undoubtedly involved in actual marihuana grow
    operations designed for commercial sales. The trial judge outlined the details as
    follows, at paras. 125-144:

June 16, 2009 - 215 Pine Valley Drive, Kitchener

On June 16, 2009 a customer arrived in his vehicle and was
    observed purchasing products at ASGS. Son Van placed the products into the
    trunk of the vehicle.

When the customer left ASGS, the customer was followed by the
    police to 215 Pine Valley Drive, Kitchener.

On Wednesday September 16
th
2009 a search warrant
    was executed at 215 Pine Valley Drive, Kitchener. A marihuana grow operation,
    consisting of 609 plants in all stages of growth, was found in the basement of
    the residence. One and one half pounds of dry marihuana was found in a freezer.
    Several thousand dollars of grow equipment were also seized. The estimated
    street value of marihuana seized was $682,080.00.

Electrical timer-boards, ballasts, shades, high intensity
    lights similar to those available at ASGS were found at this property.

June 17, 2009 -
    23 Humbolt Crescent, Brampton

On June 17, 2009 a customer came to ASGS in a van. The customer
    backed up his vehicle to the building's front doors. Mr. Nguyen placed a number
    of products into black garbage bags and then placed them into the customers
    van. Mr. Nguyen also placed some black pots into black garbage bags and also
    loaded them into the van.

The customer drove to 23 Humbolt Crescent, Brampton. The black
    bags were unloaded into the garage at the location.

On July 15
th
2009 a warrant was executed at 23
    Humbolt Crescent, Brampton.

The police discovered an operating marihuana grow operation
    with 1545 marihuana plants at all stages of growth, 657.50 grams of dry
    marihuana packaged in clear plastic bags, and a hydro bypass. Several thousand
    dollars worth of grow equipment were also seized. The estimated street value of
    the marihuana seized was $1,743,550.00.

Products similar to those sold at ASGS were found on this
    property. In particular the photographs show numerous ballasts, shades and high
    intensity lights similar to those seized at ASGS.

July 13, 2009 -
    9697 Saint-Laurent Blvd, Montreal

On July 13
th
2009 Son Van loaded the ASGS Caravan
    with boxes and black or green garbage bags.

Son Van then drove to Green Garden Supplies.  Son Van
    placed several black garbage bags and two boxes into the ASGS Caravan.

During the drive along Hwy #401, Son Van was stopped. Son Van
    told the police he was transporting lamps. Son Van lied to the police saying that
    he did not know the owner. Son Van also lied to the police that he was going
    to contact the owner of the van and they would have somebody meet him and pick
    up the lamps. The Caravan was searched and 24 boxes of growing equipment,
    lights and fertilizer was located in the green garbage bags.

Son Van then drove the Caravan to a Burger King located at the
    intersection of Boulevard Saint-Laurent and Boulevard Cremazie, Montreal
    Quebec. Son Van met with Simon On and Jin Pin Zhou at the Burger King. Son Van
    turned over the Caravan to Mr. On and Mr. Zhou who drove the Caravan to
    9697 Boulevard Saint-Laurent, a large industrial unit.

The boxes and bags from the Caravan were unloaded. The Caravan
    was driven back to Son Van at the Burger King. Son Van got back into the
    Caravan and drove it home, returning the Caravan to ASGS the next day.

On July 22, 2009, the Quebec police executed a search warrant
    on 9697 Boulevard Saint-Laurent. The police found a large marihuana grow
    operation. The seizure totalled 7764 marihuana plants at all stages of growth.
    Tens of thousands of dollars of grow equipment were also seized. The estimated
    street value of the marihuana seized was $8,675,520.00. Mr. On and Mr. Zhou,
    along with others, were arrested.

Products similar to those sold at ASGS were found on the
    property. In particular, the police found electrical timer-boards, ballasts,
    shades, high intensity lights similar to those seized at ASGS.

Constable Smith, testified that, this highly unusual delivery
    method, is a typical delivery to a marihuana grow operation since the marihuana
    grow operators do not want the supplier to know their exact location.



August 2, 2009 -
    86 Richelieu Drive, St. Catharines

The police obtained judicial authorization to electronically
    track the Caravan. On August 2, 2009, the Caravan was tracked by the police to
    86 Richelieu Drive in St. Catharines. The Caravan remained in St. Catharines
    overnight.

On August 18
th
2009, a search warrant was executed
    at 86 Richelieu Drive, St. Catharines. It was a marihuana grow operation. The
    police found and seized 495 marihuana plants at various stages of growth. Approximately
    one pound of dried marihuana was found in a fridge. Several thousand dollars of
    grow equipment was also seized. The estimated street value of marihuana seized
    was $554,400.00.

[53]

The
    trial judge found that the appellant knew his products were destined for
    marihuana grow operations, and that Son, the only ASGS employee, was acting
    under his instructions. These findings are sufficient to support conviction for
    aiding production of marihuana and aiding possession of marihuana for the
    purpose of trafficking in relation to the July 13, 2009 delivery of growing supplies
    to Montreal, where a substantial grow operation was found within eight days of
    the delivery.

[54]

Similarly,
    Nguyen himself loaded a customer van with supplies on June 17, 2009 and a grow operation
    was discovered at that customers location within 30 days. Here again, the
    conviction can be supported on the basis of the trial judges findings.

[55]

The
    evidence is thinner on the other two transactions.

[56]

With
    respect to the June 16, 2009 transaction, a customer purchased unknown products
    from ASGS on that date and, some three months later, a grow operation was found
    at a location to which that customer had been followed. In the absence of evidence
    as to the products purchased and in the absence of evidence that the appellant
    was the exclusive supplier of growing equipment to that customer, it is a stretch
    to conclude that the appellant actually aided or abetted the activities at this
    location.

[57]

Finally,
    there was no evidence that supplies were sold to the St. Catharines grow operation.
    The Caravan was tracked to that location on August 2, 2009 and it stayed there overnight,
    but there was no evidence that the appellant actually did something to aid or
    abet the marihuana grow operation that was found at that location.

(c)

Expert evidence

[58]

The
    trial judge did not err in his use of the expert opinion evidence of Constable
    Smith as to practices, equipment and supplies commonly associated with marihuana
    grow operations.

E.

The Crowns appeal

[59]

The
    Crowns appeal depends on the proposition that Mr. Nguyens garden supply
    business generated proceeds of crime utilized to buy real estate acquired
    before the 120-day period in issue on the indictment.

[60]

Since
    the Crowns premise for the money laundering charge has been rejected with the
    dismissal of the conspiracy counts, the Crowns appeal must be dismissed. There
    was no evidence connecting the appellant to any proceeds from the four
    locations to which Mr. Nguyens customers were followed.

F.

Conclusion

[61]

Accordingly,
    for these reasons, I would dismiss the Crowns appeal and allow the appellants
    appeal in that I would quash the convictions on the two conspiracy counts, lift
    the stay of the two substantive counts, and impose the sentence and related
    orders made by the trial judge  that is, 20 months incarceration concurrent
    on each of the counts of production of marihuana and possession for the purpose
    of trafficking in marihuana.

[62]

I
    would maintain the forfeiture orders and fine in lieu of forfeiture, as well as
    the order under s. 109 of the
Criminal Code
, as the trial judges
    conclusions on those matters have not been undermined by substitution of
    convictions for the substantive offences instead of the conspiracy counts.

Released: M.T March 3, 2016

G. Pardu J.A.

I agree J.C.
    MacPherson J.A.

I agree M. Tulloch
    J.A.





[1]
The trial judge ordered that the appellant was to serve a five-year prison term
    consecutive to the substantive sentence if the fine was not paid within four
    years.



[2]
See also
Kenning
, at para. 16, citing
Archbold's Criminal Pleading,
    Evidence and Practice 2008
, at para. 18-30: There can be no conviction for
    aiding, abetting, counselling or procuring an offence unless the actus reus

of
    the substantive offence is shown to have occurred.


