R. v. Huang, 2013 BCSC 2237
[51] Many of the applicable principles are summarized in R. v. Ngo, 2009 BCCA 301 at paras. 51-65:
• to succeed in a prosecution of possession for the purpose of trafficking, the Crown must prove beyond a reasonable doubt that the accused had possession of the substance, that is knowledge of its existence and an element of control over it;
• 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 prohibited plants;
• a person may be convicted of production as either a principal or a party who aids or abets the principal. In a “grow op” case, an accused may have been 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;
• the Crown may prove the essential elements of the offences of possession and production by direct or circumstantial evidence or a combination of the two. Where the case rests on circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts;
• the criminal standard of proof is not to be applied to each piece of evidence. In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must not examine each piece of evidence in isolation. Instead, the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused beyond a reasonable doubt and is inconsistent with any other reasonable conclusion; and
• as far as competing inferences from circumstantial evidence that might be open to a trial judge are concerned, he/she is not expected to:
… treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.
[R. v. To (1992), 1992 CanLII 913 (BC CA), 16 B.C.A.C. 223 at para. 41 (C.A.), McEachern C.J.B.C., cited with approval in Ngo at para. 55.]
[52] In addition to the above, the following principles also apply:
• possession may be personal, constructive or joint. To establish constructive possession, the Crown must prove beyond a reasonable doubt that the accused knew of the presence of the substance and he had some measure of control over its location: R. v. Fisher, 2005 BCCA 444 at paras. 20-24;
• constructive possession is complete “where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his ‘use or benefit’ or that of another person”: R. v. Morelli, 2010 SCC 8 at para. 17, Fish J.;
• mere presence, that is what certain of the authorities refer to as being a “found-in”, is not sufficient to establish guilt. This is because mere presence at the scene of a crime is not necessarily proof of guilt: R. v. Jackson, 2007 SCC 52 at paras. 3, 9, and R. v. Sylvestre and Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, both cited in R. v. Liu, 2011 BCSC 1269 at paras. 28-29;
• in some cases, in the absence of a credible explanation, an inference of knowledge may properly be drawn from the circumstantial evidence: R. v. To, supra, cited with approval in R. v. Vu, 2002 BCCA 659 at para. 25;
• where an alternative inference is asserted, there needs to be some evidence to support it: R. v. Vu, supra, at para. 26;
• the trial judge is entitled to apply ordinary human experience and common sense in his/her assessment of the evidence. He/she should not apply speculative reasoning: R. v. Bi, 2011 BCCA 10 at paras. 15-16; and
• while it is true that an accused is not called upon to explain suspicious things, “there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned”: R. v. Jenkins (1908), 1908 CanLII 243 (BC SC), 14 C.C.C. 221, cited with approval in R. v. Dae, 2010 BCCA 486 at para. 20.