A B.C. Supreme Court Justice dismissed Wednesday the case against two men arrested when police swooped in on a massive marijuana grow operation in a remote location east of Prince George slightly more than three years ago.
There were broad smiles on the faces of Ye Zhi Qiang and Khue Ba Vu upon hearing the decision through their interpreters at the Prince George courthouse.
On May 27, 2010, police apprehended Qiang and Vu while in the process of taking down what was then the largest marijuana grow op ever discovered in Canada. In all, 17,928 plants, worth $6 million to $9 million were seized from 22 greenhouses on the property, located on private property off a forest service road.
After hearing five days of testimony from the arresting officers, defence lawyers Ben Levine and Jon Duncan submitted a no evidence motion, arguing the Crown had failed to prove beyond reasonable doubt that their clients were guilty of the charges they faced.
Had Gray disagreed, they still had the option of presenting evidence on their clients' behalf.
In issuing her decision to acquit, Gray noted that mere presence is not enough to convict and that the Crown's case was built entirely on circumstantial evidence as there were no witnesses who saw the two actually working at the site.
It meant she had to infer conclusions from the evidence given and be certain there were no other rational inferences to be drawn when determining whether the two were guilty beyond a reasonable doubt.
Gray noted the two were seeking to run away from the police and were heading away from the greenhouses when apprehended after seeing an RCMP helicopter overhead.
"However, that does not establish that the accused had knowledge or control of the grow op," she said. "They could have come upon the grow op while hunting or exploring and upon seeing the police helicopter might have wished to avoid any interaction with police for any number of reasons, such as the general desire to avoid questioning, fear of immigration issues."
The decision hung in good measure on how Gray should treat testimony about how police learned of the operation.
Police testified they acted after they received a tip from an anonymous informant who described himself as an avid hunter and guide who came across the site while riding an all-terrain vehicle in the area.
Defence counsel contended that suggested the area was used for recreational purposes and that Vu and Qiang could have been in that area for such a reason.
Crown prosecutor Edlyn Laurie argued Gray should not consider that evidence because it was hearsay. It was disclosed in court by police for the purpose of narrative and not the truth of its contents while the informant never took the stand, she said.
Gray found it was possible but unlikely the informant was involved in the grow op and then decided to seek revenge by telling police and concluded the informant truly was a hunter and guide.
She also noted the informant told police had been in the area at least twice and went to police after he noticed a new chain across the driveway into the site as well as large greenhouses and marijuana plants upon further inspection. He left when he saw two people, one carrying a handgun, the court had heard.
With the help of a tracking dog, police arrested a third man further away from the site a few hours after the first two were apprehended. Charges against the third man were later stayed.
Three open water bottles and a pop can found at the site were tested for fingerprints but no clothing or personal items on the site were seized and police did not make efforts to connect them to the accused, Gray said.
Levine said there were plenty of other rational conclusions Gray could have drawn from the evidence that differed from the Crown's position.
"In Canada, we don't convict people if we don't have proof beyond reasonable doubt and that was the basis upon which the judge made the decision," Levine said.
