IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  On August 22nd, 2014, I convicted Mr. Gough on Counts 1 and 2 on the Information before the Court that on September 17th, 2010 at or near Maple Ridge, he produced marihuana and possessed it for purposes of trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[2]           In addition, I convicted Mr. Jesson on the same two counts and as well on Count 7 that on the same day he possessed a prohibited weapon, namely, brass knuckles, contrary to s. 91(2) of the Criminal Code, R.S.C. 1985, c. C-46.

[3]           In my lengthy reasons delivered orally on August 22nd, 2014, I stated in para. 208 and the following that in my view the Crown's case against Mr. Jesson was somewhat stronger than against Mr. Gough and my reasons as to why I held that view. 

[4]           The matter was adjourned and came on for sentencing before me on November 10th, 2014.  After hearing certain submissions from defence counsel for each accused, it was again adjourned for a reason I shall explain more fully below to today.  Today I received further and final submissions from counsel for Mr. Jesson on sentencing. 

[5]           These are my reasons for the sentence for each accused. 

[6]           Both Mr. Gough and Mr. Jesson were found to be inside a residence on 285th Street in Maple Ridge on September 17th, 2010, which contained an active grow op with some 719 marihuana plants in two grow rooms in the basement.  Some were in the budding stage. 

[7]           It was clearly an ongoing continuous type of operation of a commercial nature and one that could be classed in my view as a "large-scale" production with over 500 plants (see R. v. Koenders, 2007 BCCA 378 at para. 18). 

[8]           There was no automatic watering or feeding system found in the residence, and thus one might fairly conclude that the plants which were found to be in a healthy state had to be hand-tended.  There was a strong smell of vegetative marihuana noticed by several RCMP officers who conducted a search of the premises in September 2010 and then located the active grow op. 

[9]           The grow op was highly sophisticated with high-intensity lighting in place in each of the two grow rooms, timers, fans and related devices to remove carbon dioxide.  The upstairs of the two-level home contained a surveillance system hooked up to some four outside cameras directed at various points outside the residence. 

[10]        The electrical systems involved in the grow op were powered by electricity taken from what all evidence in this case seems to have been a Hydro by-pass.  I am mindful that Crown did not proceed with Count 3 on the Information before the Court relating to an allegation that either of the two accused individuals had stolen electricity.

[11]        Evidence was given at the trial which I accepted that if each plant grew to maturity, the marihuana would produce one ounce per plant and that its value for one crop grown over a 90-day cycle would, depending on how it was sold at the time, range from $67,350 to $201,320.  The evidence suggested that this grow op if left operational would produce three to four crops in a year by reason of the 90-day cycle in use. 

[12]        My above August reasons set out in considerable detail where various items, some related to the grow op, were found in the upstairs of the residence including in two bedrooms wherein Mr. Gough and Mr. Jesson had obviously spent the night of September 16th-17th, 2010 before their arrest early in the morning of September 17th. 

[13]        The brass knuckles related to Count 7 were found on top of a dresser in the bedroom described as No. 1 associated with Mr. Jesson, immediately beside his passport also on top of the dresser, both in plain view. 

[14]        A firearm was found under the mattress on the bed in the bedroom associated with Mr. Gough not in plain view.  However, neither Mr. Gough nor Mr. Jesson were convicted on any count on the Information relating to it as I held there was not sufficient evidence to connect anyone to it, for example, a fingerprint, and thus the necessary ingredients of possession, namely, contemporaneous knowledge and control on the part of, for example by Mr. Gough, had not been established. 

[15]        Accordingly, I am not today sentencing Mr. Gough with respect to this firearm nor do I consider it to be an aggravating factor on any basis including pursuant to s. 10(2) of the Controlled Drugs and Substances Act. 

[16]        It was nonetheless found inside the grow op in issue and is some evidence I think that is supportive of a common theme that appears in many grow op cases and in particular sentencing decisions that grow ops are often dangerous operations in the sense that there is a risk of violence associated with same, for example, by reason of grow rips and a risk of fire (see, for example, R. v. Tran, 2001 BCCA 503 and R. v. Su, 2000 BCCA 480). 

[17]        The fire risk in my view is increased somewhat where the illegal activity is carried on moreso in a residential community as compared to a more rural area as in the case at bar. 

[18]        In what has been described in the evidence as Bedroom No. 2 associated with Mr. Gough was a one-page handwritten note, marked as Exhibit 22, stating: "Thursday, March 18th, 2010, Week 5, Bud side A.  We need Bloom.  Thanks, Randy."  Bloom is a trade name associated with a plant nutrient found in the basement of the residence and certain of the photographs included in the evidence at trial actually show pictures of containers with that name on them.  There was evidence at the trial as well that the two grow rooms in the residence were described as Room A and B. 

[19]        In Bedroom No. 1 associated with Mr. Jesson, various items were found as was the case in Bedroom No. 2 to suggest both rooms were being lived in, for example, a photo album, clothing, personal papers including a passport, and in a drawer in a nightstand a two-page chart with specifications relating to different kinds or strains of marihuana. 

[20]        The above evidence would suggest that both accused individuals had some unknown role likely associated with the cultivation of the crops located.  Their exact role is unclear.  Unlike some cases, neither has been shown to have had an ownership role or to be even a party to a lease on the residence in question. 

[21]        Corporal Uzelac's testimony at trial on point I think bears repeating as set out in para. 37 of my August reasons convicting both accused individuals:

[22]        I am not able to find for purposes of sentencing these two accused individuals before me that they were merely bit players, nor can I or do I find that they were likely principals in the operation, or what is sometimes referred to in the case law to be "masterminds".  I think it is likely both were more probably as in R. v. Chen, 2011 BCPC 297 gardener/caretaker types.  Judge Bayliff said this on point in para. 90 of her decision:

[23]        In other words, as Mr. Ip, Crown counsel contends, I think based substantially on Corporal Uzelac's above trial evidence, the two accused were important cogs in the illegal grow op machine which could not have carried on likely without their participation.

[24]        I now turn to the circumstances of each accused individual.  I will deal with Mr. Jesson first.

[25]        Mr. Conroy advised that Mr. Jesson was age 29 in December 2010.  He had been in a relationship for two years and his girlfriend was in court in November 2014 as was his mother and her common law spouse and a younger brother, one Mike.  The relationship was said to be a solid relationship but as of yet they have had no children. 

[26]        I was told that he had worked as a longshoreman for some time since about 2001 and in November 2014 was working full-time and had done so since August of 2014.  His hours of work were Monday to Friday, 8:00 to 4:30 p.m. and he operated a forklift.  He was not in November of 2014 a member of the union but was then said to be 25 places away from being eligible to join.  His goal then was to achieve this status early in 2015 and I am told today that he has now done so.  This process, argued Mr. Conroy, namely, his working as a longshoreman should be allowed to continue. 

[27]        Filed as Exhibit 2 at the hearing this morning is a statement of earnings for Mr. Jesson as at May 23rd, 2015 showing taxable year-to-date income earned as a longshoreman of some $46,608. 

[28]        Mr. Conroy said when the case started Mr. Jesson was making about $4,000 a month and now had increased his income to $6,000 to $7,000 a month working as a longshoreman.

[29]        Based on all Mr. Conroy's relevant submissions, I conclude that in September 2010 when this offence was committed, Mr. Jesson had been working on some reasonably gainful basis as a longshoreman.

[30]        He has a Grade 12 education and coaches teenage players in touch football.  He placed a number of letters before me, all of which I have considered.  One from his mother, a second from his aunt, and a third from his head foreman at work who described him as a hard worker and a very good equipment operator.  His mother describes him as a wonderful son and very caring, giving and supportive.  His aunt said he was always there for his family and an integral and valuable part of her life. 

[31]        All referees according to Mr. Conroy were made aware of his convictions.  None commented on them, for example, attempting to give any sort of explanation for this activity on his part.  That said, the three letters are, if not wholly unbiased, all very positive.  There is no evidence any of these referees knew in September 2010 exactly what Mr. Jesson was doing relating to the grow op.

[32]        As to his criminal record, Mr. Conroy advised that on a fireworks evening on August 11th, 1999 when he was just age 18, someone tried to rob him and he stabbed his assailant in the stomach resulting in a charge of assault causing bodily harm for which he received a sentence of a one year conditional sentence order all of which terms ordered by the Court he had fully complied with. 

[33]        He is age 30 and a high school graduate.  I assume he was about age 26 in September 2010.  Following graduation, he worked from 2002 to 2007 at the Burnaby Winter Club doing custodian and maintenance work, minor carpentry, and driving a Zamboni ice refinishing machine.  He was laid off in 2007.  He then worked in Kelowna doing landscaping in the years 2008 and 2009.  I was not told he was employed anywhere in the year 2010.  In September 2010, he was said to be couch surfing with friends. 

[34]        In November 2014 he was employed in Kelowna, according to Mr. Thorhaug, working at the Capital Centre I believe doing general maintenance work on two rinks and sports fields.  His hours had been cut back and his goal was to attend BCIT and get a trade qualification.  On June 2015, he was again unemployed.

[35]        He lives in Kelowna with his brother and is active in various sports including hockey.  He now does some unpaid and ill-described activities in Kelowna rinks with younger players.

[36]        Mr. Gough has no criminal record.  There have been no problems with Mr. Gough in the community or otherwise according to Mr. Thorhaug since September 2010.  The same could be said for Mr. Jesson. 

[37]        I will deal with aggravating factors first.

[38]        I have considered s. 10(2) of the Controlled Drugs and Substances Act and as well s. 718.2(a) of the Criminal Code of Canada.  None of the factors listed in the Controlled Drugs and Substances Act (a) through to (c) inclusive or in s. 718.2(a) are present in the case at bar with respect to either accused individual. 

[39]        The one aggravating factor that is present for both accused individuals is that the criminal enterprise they were involved in I have found was a very sophisticated large scale grow op.  This is so notwithstanding a comment which I recall was once made by Mr. Conroy during this lengthy proceeding that their surveillance system was not working at least so as to be able to warn them of the arrival of the RCMP on the morning of September 17th, 2010. 

[40]        I have not as well overlooked the fact that the same system ultimately proved most helpful to the Crown, at least on the voir dire stage of this case, because alleged police misconduct that morning was substantially filmed and was played in court so that I was not required to rely on merely the viva voce evidence of the police on point and could use the best evidence recorded by the grow op surveillance system itself.

[41]        Crown argued that the presence of brass knuckles in Bedroom No. 1 associated with Jesson and the presence of dogs were aggravating factors.  I am not in agreement that this is so.  The presence of the brass knuckles is some evidence supportive of the appellate view that I share that grow ops carry with them the risk of violence.  The presence of dogs is evidence going to the level of security in this very sophisticated grow op and a factor in it.  

[42]        Mr. Ip also argued that due to the March 2010 note above, "We need Bloom" referred to and found in the bedroom associated with Mr. Gough, namely, No. 2, but this is some evidence that Gough's association with this enterprise was extended.  I agree that it is some evidence only.  I give it very little weight.  I do consider it to be at best a weak aggravating factor.

[43]        As to mitigating factors, Mr. Gough has no criminal record and Mr. Jesson's was dated and unrelated so as to not be an aggravating factor but nor can it be directly stated that he has no criminal record and did not at September 17th, 2010.  I place no reliance on his previous conviction for purposes of my sentencing him in this case.

[44]        When called upon this morning, Mr. Jesson indicated that he wanted to apologize to his family and to the Court for what he had done.  He said he had changed his life and now felt he was a better man.  I accept this as a genuine statement of remorse on his part and accept his statement at face value, and as a further mitigating factor. 

[45]        Mr. Gough did not wish to address the Court and thus I have no evidence he is remorseful for what he did.  Nonetheless his lack of remorse is not a factor to be considered by me, for example, see the comments of Ryan J.A. in R. v. S.E. (1997), 1997 CanLII 11513 (NB CA), 191 N.B.R. (2d) 3 at para. 6, a decision of the New Brunswick Court of Appeal. 

[46]        Although not expressly argued as a factor by defence counsel, I have considered to what extent it might be said each accused has, since September 2010, rehabilitated himself or made efforts to do so, and whether this is a factor I should take into account in sentencing as to both the drug offences under the Controlled Drugs and Substances Act for both accused and the weapons charge for Mr. Jesson. 

[47]        Certainly it seems there is high legal authority that due to the destructive nature of drug trafficking (not the charge in the case at bar) general deterrence is the factor to be stressed (see, for example, R. v. Cunningham (1996), 1996 CanLII 1311 (ON CA), 27 O.R. (3d) 786 (Ont. C.A.) and R. v. Foulds, October 30, 1996, Ontario Court of Appeal, File No. C7154). 

[48]        I believe, nonetheless, that all efforts at rehabilitation are relevant to sentencing (see R. v. Stanton, 2011 BCCA 217 at para. 33).  I give this factor somewhat more weight I think in Mr. Gough's case than in Mr. Jesson's.  Gough, according to Mr. Thorhaug, was drifting in 2010 and was employed at least in the Fall of 2014.  Jesson however at all material times has been employed as a longshoreman.  There is scant evidence as to his rehabilitative efforts since December 2010 beyond his having maintained I believe reasonably steady employment and not re-offending since September 2010. 

[49]        I consider nonetheless these two factors to be substantially present as well with both accused individuals and to be mitigating factors for both.  I have considered them as efforts at rehabilitation in addressing what sentence would be fit and just in this case for both accused individuals. 

[50]        In addition, I consider in the case of Mr. Jesson the presence of his family members and girlfriend to be mitigating factors as well, perhaps something more easily done for him inasmuch as he now lives in the Lower Mainland area of this Province.  Thus on a numerical basis only the mitigating factors in this case outnumber the aggravating factors for each accused.

[51]        The Crown relied on the following cases, all of which I have read and considered:

[52]        Defence counsel relied on the following cases, again all of which I have read and considered:

[53]        Mr. Thorhaug indicated during the course of his submissions that he had reviewed the case law after I suppose R. v. Vo, supra, was decided October 22nd, 2009, and said he had located no more current case that dealt with any changes to the principles set out in all of the above cases provided to me at the outset of the sentencing hearing in this matter. 

[54]        Mr. Conroy said there was no appellate authority he had seen since 2007 on point, I assume referring to Anderson, supra, and as well Koenders, supra, decision in our Court of Appeal, but presumably overlooking the Vo, supra, decision two years later in 2009. 

[55]        The case law placed before the Court makes it clear that the relevant and important principles of sentencing certainly with respect to the offences under the Controlled Drugs and Substances Act are as follows:

[56]        Of these various principles in a large commercial grow op case, it seems clear that the first two principles require some heavier emphasis (see, for example, R. v. Laird, supra, at para. 55). 

[57]        To quote Kirkpatrick J.A. in R. v. Vo, supra, at para. 13 deterrence speaks to "the need to specifically deter both offenders from the lure of massive illegal profits and the need to deter others by imposing a sentence that demonstrated real consequences for operating marihuana grow operations."  In this brief passage, she was summarizing I find with approval the reasons of the trial judge in Vo in imposing the sentence he did. 

[58]        Madam Justice Watchuk in para. 47 of R. v. Laird, supra, quoted Her Honour Judge Bayliff in Chen, supra, at para. 59 as to the principle of denunciation as follows:

[59]        I am also mindful of the principles in s. 718 to s. 718.2 of the Criminal Code, all of which I have considered and in particular s. 718.2(d) and (e) which state as follows:

[60]        I hasten to note that neither accused individual before the Court is an Aboriginal person.

[61]        Mr. Ip says that a fit and just sentence in this case for each accused would be a jail sentence -- not a conditional sentence order -- in the range of 18 months to two years less a day.  He argues that they were similarly involved in the undertaking and should therefore receive the same sentence.  He of course overlooks the fact that I also found Mr. Jesson guilty of an additional Criminal Code offence, Count 7, pursuant to s. 91(2) of the Criminal Code. 

[62]        Mr. Ip is opposed to the Court granting a conditional sentence order, but yet agrees that such a sentence having regard to the offence date, September 17th, 2010, is available to each accused individual before the Court. 

[63]        Mr. Ip relies on R. v. Vo, supra, in support of this opposition to a conditional sentence order where Kirkpatrick J.A. said this at para. 17 of the Court's reasons:

[64]        Mr. Ip relies on R. v. Koenders, supra, with respect to the permissible range of sentence.  In Koenders, Madam Justice Ryan who gave the judgment of our Court of Appeal noted that while there was no question that the Court of Appeal's decisions on the range of sentencing could be difficult to reconcile, that there was nonetheless no presumption in favour of or against a conditional sentence order in cases like the one at bar (see paras. 11 and 12).  She then said this in paras. 13 and 19 of her reasons:

[65]        Mr. Ip submitted that the important sentencing principles of denunciation and general deterrence that were very much relevant and in play in the case at bar could not be met with the imposition of a conditional sentence order, essentially the finding made by all levels of courts in the above five cases which Crown relied on in closing submissions on sentence.

[66]        As to an appropriate range of sentence, Mr. Ip argued that the cases before me would support that it was between eight months to two years less one day if the Court was to reject the imposition of a conditional sentence order.  Mr. Conroy appeared to agree that this was the general range of sentences but felt 8 to 16 months was somewhat closer to the mark, but as I shall shortly come to, argued most strenuously, as did Mr. Thorhaug for his client, that a conditional sentence order would indeed be a fit and just sentence in this case.

[67]        Mr. Conroy opened his remarks with what I will call the "proposition" that today the principle or need for both denunciation and general deterrence in marihuana grow op sentencing cases was not as great as it was, for example, in the year 2010 for various reasons, including:

[68]        Denunciation is described in R. v. M. (C.A.) (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 at para. 81 a judgment of our Supreme Court of Canada by Chief Justice Lamer as follows:

[69]        Mr. Conroy argued that the sentence I impose therefore would not, if heavy, really send a message to persons who might engage in such illegal activity as there was not a lot of it now going on.  This was overall the proposition he advanced which I shall return to below. 

[70]        He argued that the critical consideration in sentencing was therefore the individual circumstances of each accused individual and that I could accept that Mr. Jesson following this whole experience was specifically deterred from growing marihuana ever again or otherwise being involved with it on an unlawful commercial basis.  He stressed that a conditional sentence order could have a longer term than a jail sentence, up to two years less a day, and could be followed with a probation order of up to three years in duration and thus could be a very meaningful sanction. 

[71]        He proposed a conditional sentence order of between one to two years less a day duration would be an appropriate sentence for his client, Mr. Jesson, followed by probation as I saw fit which would allow him to keep working.  He felt nonetheless that a probation order was not necessary as Mr. Jesson had been on bail for four years without incident.  It was not in the public interest to now incarcerate Mr. Jesson for an offence that had occurred in September 2010. 

[72]        He relied particularly on the case of R. v. Giang, 2010 BCSC 1016 referred to in R. v. Chen, supra, at para. 45 by Bayliff P.C.J. as follows:

[73]        I should state that the passage of time in this case, very substantially due to the need for a lengthy voir dire on Charter issues as well as a reasonably lengthy trial itself, and the availability of two very senior defence counsel to return to court for continuations, as well as my own schedule, has not in my view lessened or diminished the seriousness of the offences in the case at bar.

[74]        Mr. Conroy argued that the number of plants, 719, was closer to the lower end of a commercial operation.  This is not in accordance with R. v. Koenders, supra, at para. 18. 

[75]        Mr Jesson, he said, had complied with all conditions of his earlier one-year CSO and all his bail terms relating to these recent offences and therefore could be expected to comply with any and all Court orders I might make if I were minded to grant a conditional sentence order and possibly even a probation order to follow.  He would no longer be a danger to the community and could safely serve his sentence therein.

[76]        Pursuant to s. 718.2 of the Criminal Code, he stressed several times that I must look at all other reasonable alternatives short of jail in sentencing his client. 

[77]        Mr. Conroy submitted I could take judicial notice of the facts in the proposition in his opening submission to the effect that demand had decreased significantly for B.C. marihuana as the U.S. market was gone because other judges in cases before the Court had done so on matters generally related to grow operations. 

[78]        He cited R. v. Wallis, 2007 BCCA 377 referred to at para. 36 of R. v. Chen, supra, where our Court of Appeal held that the trial judge had not erred in taking judicial notice of a "significant lucrative illegal marihuana industry in this province" and held that a trial judge was entitled to consider the impact of crime on his local community. 

[79]        He cited as well Bayliff P.C.J.'s remarks at paras. 58 to 62 in Chen, supra, as somehow supportive of the same proposition.  Here, at most Bayliff P.C.J. seems to take judicial notice (without so stating) that organized crime is attached to the lucrative and unregulated dealings and earnings associated with this industry. 

[80]        Mr. Thorhaug really supported and adopted all submissions made by Mr. Conroy and argued as well that a CSO of between 15 to 18 months would be a fit and just sentence in the case at bar for his client. 

[81]        He stressed in his remarks in November 2014 that Mr. Gough's involvement in the crime was not significant and in essence that he was a fairly young man with a future ahead of him.  Rehabilitation was thus an important sentencing factor to be considered in the case of Mr. Gough.  Mr. Gough had been deterred and would not again be involved in such illegal activity.  In 2010 he was drifting; that had now changed.  He was now working daily as a productive member of society from 8:00 in the morning until 4:30 in the afternoon.  At June 2015, he was however again laid off.

[82]        Failing my finding that a CSO would be appropriate, a much shorter custodial sentence should be meted out he felt in the range of six to nine months as compared to that for which Crown contended.  If he went to jail, according to Mr. Thorhaug, Mr. Gough would undoubtedly lose his job.  That was likely true in 2014 but not so in June 2015. 

[83]        In reply, Mr. Ip argued that the above proposition put to me by Mr Conroy and concurred in by Mr. Thorhaug supportive of my giving less weight to the sentencing principles of both denunciation and general deterrence said to be now less significant factors than they once were, was not one that was so notorious (his term) that I should accept it as accurate and in essence take judicial notice of it. 

[84]        He correctly in my view pointed out there was a distinction to be drawn between a trial judge stating what was going on in the community in which he or she resided, for example, Bayliff P.C.J. in Chen, supra, as compared to my being invited to take judicial notice of Mr. Conroy's proposition. 

[85]        Judicial notice is described in Evidence by Sopinka, Lederman and Bryant (1992 edition) at p. 976 as follows:

[86]        Watts Manual of Criminal Evidence (2006 edition) defines it in this way in s. 14.01 at p. 105:

[87]        One case cited in Watts at p. 107 of the manual is that of R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 26 C.R. (3d) 252, a judgment of the Ontario Court of Appeal succinctly summarized in Watts as follows:

[88]        During the course of this submission, I asked Mr. Ip whether Mr. Conroy's proposition that I was asked essentially to take judicial notice of was a disputed fact within s. 724(3) of the Criminal Code, appreciating as I did that the proposition was based on certain facts put to me by Mr. Conroy as counsel only in his closing submission as distinct from being found in the body of evidence led at trial or indeed at the sentencing hearing itself.

[89]        After some discussion and I think construing the noun "fact" somewhat widely, both counsel – Mr. Ip and Mr. Conroy – seemed to agree it was a fact in dispute.  In the course of this discussion, I believe I made it clear to Mr. Conroy initially that I was not at the end of his remarks in the sentencing hearing last day in November 2014 with him on the above proposition.  I indicated that on the next day – today -- I wanted to hear argument from both sides, Crown and defence, as to the following points:

[90]        In any event, at the sentencing hearing today, Mr. Conroy filed an email from Mr. Chris Johnson and four newspaper articles all of which I admitted into evidence pursuant to s. 723(5) of the Criminal Code of Canada as hearsay evidence that according to Mr. Conroy might and would have some bearing on the above proposition that he raised. 

[91]        Mr. Johnson's email will give some flavour to the content of this evidence dated May 12th, 2015:

[92]        The articles provided by Mr. Conroy which were admitted as hearsay evidence, the Code itself making no distinction between the different levels of hearsay, all suggest that the prevalence of grow ops in the area served by this Court is down from what it was earlier.  All contain what at the end of the day in my view is sheer speculation on the part of the authors or indeed on the part of persons they interviewed as to why this might be so. 

[93]        One April 15, 2014 article entitled "Toronto's Vanishing Grow Ops Fall Victim to Plot Economics" written by one Patrick Kane said to be an investigative reporter contains in part hearsay comments, again pure speculation in my view by a Toronto defence lawyer, Peter Zaduk.  I quote in part from p. 1:

[94]        Appended to this article are two graphs, one said to emanate from the Toronto Police Service with respect to statistics for the number of grow ops they found between the yeas 2006 and 2013, I assume in the greater Toronto area known by the locals as the GTA.  The chart does not really make this clear.  The 2006 figure is 254 whereas the 2013 figure is some 87. 

[95]        In my view, there are numerous reasons why this might be so.  One is suggested in the statement below the chart (which apparently Mr. Zaduk does not agree with) that, "The drop roughly coincides with stricter penalties for marihuana cultivation becoming law in early 2012.  Before then few grow operators rarely spent time in jail."

[96]        A further reason might be the availability of police resources in the years between 2006 and 2013 to actually take steps to find these places as well as the participation of Ontario Hydro in the years in question to help locate them, none of which I have any evidence concerning.

[97]        There is a second chart that is appended to this article that I found of interest entitled "Charges for Production of Cannabis: Canada" said to be a chart showing charges from the years 1977 through to 2012.  This chart would suggest that in the year 2010 there were some 7,094 charges whereas in the year 2012 there were 5,557.  To complete the analysis, in the earlier year 2006 the number of charges is said to be 6,550. 

[98]        I place no weight on any of this hearsay evidence beyond the two charts referred to above.  I am far from convinced that what is going on in Toronto aids me in understanding what is occurring here in B.C. 

[99]        There can be a great number of reasons why fewer grow operations are being located if even this is currently an accurate statement.  Their operators for example, may over time have become better at secreting them so as to not be detected by the authorities be they municipal inspectors, the police, British Columbia Hydro or others. 

[100]     The police may locate them, but be satisfied simply with breaking them down and putting them out of business but content not to lay criminal charges, thereby avoiding such tasks on their part as attending often lengthy voir dires -- as occurred in the case at bar -- to justify their conduct in not breaching any important Charter right of any accused person charged. 

[101]     Then there is the very obvious reason that Court sentences that are intended to deter and denounce really work despite what some of the sources quoted in the article state. 

[102]     At the end of the day, I reject Mr. Conroy's proposition that denunciation and general deterrence are now of less significance than they once were in the sentencing of an accused with respect to the charges before the Court.  The Court of Appeal, at least according to Mr. Thorhaug, has not yet told B.C. trial judges that this is so and without such direction from on high, I accept the law as laid down by our Court of Appeal in such cases as Vo, supra, and Koenders, supra, as an accurate statement of the current law on these two important principles. 

[103]     I will deal first with whether or not I am of the view that a conditional sentence order as requested by both defence counsel would in my view having regard to the facts of this case, the seriousness of the offences, and the particular circumstances of each accused, and considering all aggravating and mitigating circumstances referred to above, and all relevant sentencing principles, would be a fit and just sentence for each accused.

[104]     Bayliff P.C.J. helpfully sets out the five pre-conditions which the Court must consider in assessing the appropriateness of this type of sentence in para. 16 of her reasons in Chen, supra, as follows:

[105]     As to (2) above, I would add that it is the state of the law on the offence date that governs not as in this case a later Criminal Code amendment which provided a mandatory jail sentence for the Controlled Drugs and Substances Act offences here involved. 

[106]     In my view, the first three factors are met with respect to each accused individual.  As to the fourth factor, I am prepared to accept as accurate Mr. Thorhaug's submission made on behalf of Mr. Gough that he was essentially drifting in December 2010, although I have not been told why, and that he was employed at the time of the first sentencing hearing. 

[107]     I do note however that I did not believe Mr. Gough when he testified before me at the trial.  None of Mr. Thorhaug's submissions on sentence were supported with any independent or corroborative evidence, for example, a letter from a current employer or copies of emails to and from BCIT making enquiries with respect to future trade courses. 

[108]     I do not say this is legally necessary evidence.  I do say that such evidence might help a trial judge who found an accused's credibility wanting at trial and at a following sentencing hearing is asked to believe what the same accused has given to his counsel by way of instructions.  Nor do I say my finding as to his credibility is a material or significant factor in the sentencing process with respect to this accused.  Thus, Mr. Gough's personal circumstances were for a period of time changed for the better, I think, four years or so after the offence.  He had a source of income that he seemed not to have in September 2010 and which financial vo grow op. 

[109]     As I have said, I understood that Mr. Jesson was working in September 2010 perhaps to a lesser extent than now, however, working nonetheless.  He is now in a relationship and there is no evidence he was in December 2010.  This is an additional support now as compared to then. 

[110]     On balance, I am able to find on all the evidence in this case that there is no material risk that if either accused individual were granted a conditional sentence order and required to serve the same in their respective communities that they would endanger the community in so doing. 

[111]     I am familiar with R. v. Proulx, the leading decision on conditional sentence orders reported at 2000 SCC 5 (CanLII), [2000] 1 S.C.R. 61 a judgment of our Supreme Court of Canada dealing with all the various principles relevant to a judge considering whether or not a conditional sentence would be a fit and just sentence, and particularly the views of the Supreme Court of Canada that a conditional sentence order can provide a significant amount of both denunciation and deterrence through strict terms, including house arrest. 

[112]     I do not intend to repeat all the principles set out in that lengthy case which I have carefully considered.  They are all very well summarized in my view in the Chen decision beginning at para. 19 and the following and of course referred id I presume was no doubt filled with something received from his involvement in the to in Koenders, supra, by Ryan J.A.  I am aware as well of Chief Justice Lamer's comment at para. 106 quoted by Ryan J.A. in Koenders at para. 29 as follows:

[113]     The above fifth pre-condition or principle if you will poses the greatest concern in the case before me.

[114]     Notwithstanding the able submissions made by Mr. Conroy, wholly adopted by Mr. Thorhaug, that now the important sentencing principles of denunciation and deterrence are of less consequence with respect to the subject drug offences in the case at bar than they once were, I have not accepted this to be a persuasive or compelling argument and indeed, have rejected it. 

[115]     The most important principles of sentencing in this case remain as set out in Vo and Koenders, supra, referred to at the outset of these reasons.

[116]     I have considered nonetheless the fundamental purpose and principles of sentencing set out in s. 718 to 718.2 in the Criminal Code in considering whether or not having the two accused (or either of them) serve their sentence in the community would be consistent with them.  I am of the view that nothing has occurred to change the clear and continuing fact that grow ops are highly undesirable and unwelcome enterprises in any law abiding community including in and about the Tri-Cities area of this Province serviced by this Court.  Time and again judges in both the British Columbia Supreme Court and our Court of Appeal have said that grow ops are dangerous.  A relatively recent example of such a comment is as made by Bennett J.A. in R. v. Wu, 2010 BCCA 366 at para. 28 wherein she stated cryptically as follows:

[117]     The risk of violence was clearly foreseen by those who worked in the subject grow op.  Otherwise, why have steel gates, a surveillance system, dogs and all the other items located in the residence by the RCMP on their search, including the brass knuckles possessed by Mr. Jesson and the gun. 

[118]     I have found there was an electrical by-pass associated with the subject grow op which while it did not give rise to a proven charge or conviction of either accused before me, does clearly in my view factually support that there was some added risk of fire associated with this grow op. 

[119]     As to the gun, neither accused was convicted of possessing it but it was however found under the mattress on which Mr. Gough slept in the early morning hours preceding his arrest.  It was there.

[120]     These two accused individuals were involved in this type of enterprise.  It was a large-scale, very sophisticated criminal enterprise which clearly would have involved planning, organization, and deliberation and possibly ongoing duplicity or dishonesty on the part of each insofar as they may have chosen not to tell their then current support group what they were doing in September 2010. 

[121]     This grow op, as is likely the case with many, would have been highly lucrative.  Corporal Uzelac's above referred to evidence makes that abundantly clear as is the obvious fact that grow ops are illegal business enterprises and as such do not pay any taxes on their income.  Because they are highly lucrative enterprises, it is sheer nonsense in my view to imagine that the majority of such large-scale drug enterprises are set up no doubt at significant cost to produce only a single crop.  The lucrative nature and the tax-free aspect of the business result in a huge incentive for the production of even one crop as recognized in part in Koenders, supra, at paras. 20 and 21.  For this reason alone, denunciation and deterrence remain in my view key sentencing principles. 

[122]     I find on all the evidence in this case that likely the main motivation for Mr. Jesson's involvement in this grow op would have been greed.  In December 2010, he was able to work on some basis as a longshoreman and was earning an income.  As for Mr. Gough, I find that greed was as well a factor in his involvement, but I am prepared to accept that at the time he was not working at other gainful employment, although I have really been given no facts at all as to his efforts to seek employment at this time that he was said to have been drifting in the fall of 2010.  This said, I suspect greed will almost always be a factor in any larger grow op case. 

[123]     I should also state that there is no evidence in this case as to the following factors sometimes seen to be relevant as to whether or not a particular sentencing judge will grant a conditional discharge or not:

[124]     Taking all factors referred to above in this case into consideration, I find that a conditional sentence order for each accused with strict punitive conditions would be consistent with the fundamental purpose and principles of sentencing set out ss. 718 to 718.2 of the Criminal Code of Canada.  In the result, the sentences I consider to be fit and just for each individual are as follows.

[125]     Mr. Jesson will be sentenced to an 18-month conditional sentence order.  The terms of the conditional sentence order will be as follows:

[126]     These are the so-called statutory conditions.  The next provision is that while on the conditional sentence order:

[127]     Following the completion of his conditional sentence order, he will be placed on probation for a period of one year.  The provisions of the probation order will be as follows:

[128]     There is a further exception to the house arrest provisions of the conditional sentence order that I am sorry I should have enunciated earlier and that is that Mr. Jesson may be out during the house arrest period of time to attend any court proceeding in the Province of British Columbia where his presence is lawfully required.

[129]     I should also state that the sentence that I have just defined for Mr. Jesson is indeed a global sentence for all three matters for which he was convicted.

[130]     I turn now to Mr. Gough.

[131]     In my view, a fit and just sentence for Mr. Gough would be a conditional sentence order of 16 months' duration.  The conditions in the conditional sentence order will be exactly the same as the conditions in the order I have just recited for Mr. Jesson with the following exceptions:

[132]     Upon the completion of his conditional sentence order, he will be placed on probation for a period of one year.  The terms and conditions of his probation order will be exactly the same as I ordered for Mr. Jesson save that the first report that Mr. Gough is to do assuming he continues to reside in the Kelowna area, will be to a probation officer in the municipality in which he resides which I am assuming will be Kelowna.  That first report again is to be within two business days of the completion of his conditional sentence order.  Otherwise, the terms and conditions will be the same.

[133]     I am charged with the responsibility of explaining the provisions of ss. 742.4 and 742.6 of the Criminal Code to both accused who are before me and I am confident that both of their very experienced criminal defence lawyers will do likewise before the day is out. 

[134]     Section 742.4 provides that:

[135]     Then there is a process whereby a hearing can take place and the change can be considered by the Court and if found to be appropriate the change would be made.  

[136]     Subsection (5) of s. 742.4 suggests that where either a prosecutor or the offender so called is likewise of the view that a change to the existing orders would be a sensible thing, that they too can take steps to seek a change by providing me notification called for in s. 742.4 and the following sections.

[137]     Section 742.6 is arguably a horse of a different colour.  It deals with the procedure to be followed in the event that there is a breach of any of the conditions in the conditional sentence order. 

[138]     I should warn both accused individuals before the Court that it is almost a certainty that the RCMP or others may be checking on their compliance with both the house arrest and curfew provisions of the orders that I have made over time. 

[139]     In the event that they are found to be in breach of any of the orders there is the prospect that the matter can be brought back before the Court, before me, and under s. 742.6 I have an ability to do various things, including putting either accused individual in jail -- real jail -- for a period of time including in a serious case for the remaining time left to be served on their conditional sentence order.  Thus, these orders are to be taken seriously by each accused individual. 

[140]     Lastly, in addition I make the further orders sought by Crown counsel in this matter which were unopposed by defence counsel and for each accused individual:

[141]     I need some assistance as to when individuals who are not in custody are able to provide samples of bodily substances in this area before a Detachment of the RCMP.  Do either counsel have any helpful information on that point?

[142]     MR. IP:  Yes, because this is a Maple Ridge file there are a couple of days in the week and I think Madam Registrar is getting the Maple Ridge dates.  They can't do it in Port Coquitlam.

[143]     THE COURT:  Yes, all right.

[144]     THE CLERK:  If I can just have a moment to see if I can find that out. 

[145]     THE COURT:  I don't really wish at this late hour to spend a great deal of time on this.  Can I simply make an order that they will –

[146]     THE CLERK:  It's the Ridge Meadows one?

[147]     MR. IP:  Yes.

[148]     THE CLERK:  Okay, Tuesdays and Thursdays between 9:00 to 10:00 a.m.

[149]     THE COURT:  Yes, all right.  I would have in mind giving them a date by which these samples are to be taken.  Today is the 1st of June I think and it would strike me that by Friday the 12th of June that should be ample time, all right?  So the DNA order I make then will be that on or before 4:00 o'clock p.m. on Friday, June 12th, 2015, Mr. Gough and Mr. Jesson will at the Ridge Meadows Detachment of the Royal Canadian Mounted Police –

[150]     THE CLERK:  Sorry, Your Honour, it's either Tuesdays or Thursdays.

[151]     MR. THORHAUG:  They have to phone and make the appointment.

[152]     THE COURT:  All right, all right.  Either on a Tuesday or Thursday between the hours of 9:00 o'clock and 10:00 o'clock a.m. for purposes of providing such sample or samples of bodily substances as they are required to do in order to allow DNA analysis to be completed. 

[153]     There as well needs to be an exception with respect to the conditional sentence order that each accused -- and this needs to be expressly stated in each order – each accused is permitted to be outside his place of residence and the property on which it is situate for purposes of attending directly to and at the Ridge Meadows RCMP Detachment for purposes of providing a DNA sample and thence forthwith returning directly home to his place of residence.

[154]     MR. IP:  On that topic did you put an exception to be out of their residence for the purpose of reporting?

[155]     THE COURT:  Yes, that is an excellent suggestion that I had overlooked.  I agree that there should be a further exception that if required to report in person to a conditional sentence supervisor, the accused may be outside his residence and the property on which it is situate solely for purposes of travelling directly to such a meeting, attending such a meeting, and travelling forthwith directly home at the conclusion of the meeting.