Four grow oppers acquitted

On Monday morning there were seven names on the court docket. Five minutes later, just three remained.

On Monday morning there were seven names on the court docket.

Five minutes later, just three remained.

The Crown presented no evidence against four of the men who faced multiple charges of producing and possessing marijuana at five grow houses in Whitehorse — Wei Xiong Wen, Jian Xiong Zhou, Min Shan Jiang and Kiu Tin Yeung.

The Crown’s decision comes weeks after a territorial court ruling preventing some RCMP evidence from being heard at trial.

Judge Karen Ruddy found the RCMP violated the Canadian Charter of Rights and Freedoms numerous times during its investigation and excluded evidence obtained from those breaches.

For example, Ruddy excluded all evidence from the “unlawful” arrest of Wen.

She also tossed out a search warrant for 16 Sitka Crescent — obtained with altered and enhanced information — that led to the arrests of Zhou and Jiang.

“The Crown felt the prospect of conviction was not sufficient to proceed at this stage,” Crown counsel Ludovic Gouaillier said after court was dismissed Monday.

And so these four men were acquitted.

But the charges have not been stayed or withdrawn.

“It’s a technical distinction that allows the Crown to appeal,” said Crown counsel Noel Sinclair.

The Crown has not decided whether to appeal.

“Once the trials are concluded, we will move on to a more focused consideration of the appeal and which, if any, of the accused we would be interested in attempting to pursue further,” said Sinclair on Monday.

The case stems from Project Mobile, a 2005 RCMP investigation that ended with nine men facing multiple charges of possessing and producing marijuana following six busts, during which RCMP seized more than 4,500 pot plants.

Of the nine who were originally charged, four were acquitted, two pleaded guilty and have been sentenced; two more are expected to plead guilty, and one man — Zhi Jiang Xu — was never apprehended. A warrant is still out for his arrest.

Zhu Dong Liang pleaded guilty to theft of electricity, producing marijuana and possessing cocaine. He was sentenced to one year in jail.

On Monday, defence lawyer Gordon Coffin told the court his client, Kwok Yin Cheung, who could not appear, intended to plead guilty to producing cannabis. Cheung’s sentencing is slated for May 22.

On Tuesday, after a one-hour delay, Wei Min Zhai waived his charges in Yukon court so they can be heard in British Columbia.

It means the accused will plead guilty in his home jurisdiction, said Gouaillier.

He could not specify the charges to which Zhai planned to plead guilty.

Crown and defence counsel agreed on a statement of facts and a joint submission for sentencing, but neither will be made public until Zhai appears in court in BC.

‘Gardener’ gets six months

On Monday, Guang Xian Zhu, a ‘gardener’ or caretaker of one grow-op, sat expressionless in Yukon territorial court listening to a Cantonese translation of the proceedings over thick black headphones.

Ruddy sentenced Zhu to six months less one day in jail, 18 months of probation and 100 hours of community service.

Although she called the sentence “low” when considering the scale and location of the operation, Ruddy adopted the recommendation from Crown and defence’s joint submission.

Zhu was arrested following a bust at 22 Tigereye Crescent where RCMP seized 59.85 kilograms of pot worth between $330,000 and $530,000, and more than $15,000 in equipment.

In September 2005, the RCMP searched the home and found a “substantial” commercial grow-op with 711 healthy pot plants and an “elaborate” illegal diversion of electricity that was fueling 1,000-watt lamps, timers, oscillating fans and charcoal air filters for eliminating the “skunky” marijuana odour, said Sinclair, reading from an agreed statement of facts.

They also found Zhu in the basement of the house.

He was a “gardener” or caretaker, who came in to tend to the plants every few days.

Overall, the busts heralded a “very unwelcome” proliferation of the BC pot industry into Whitehorse, said Sinclair.

The act of producing drugs is criminal, but there are so many other problems that ride in on its coattails — such as break and enters, thefts, assaults and street-level trafficking.

The house was rigged with a “chaotic arrangement of wires” that could have posed a fire hazard in the residential neighbourhood, Sinclair told the court.

Grow-ops can also cause damage to the houses they inhabit, such as toxic moulds and structural damages.

Although Zhu was only a gardener he was involved in a much larger situation, argued Sinclair.

Even minor players cannot hide behind their ignorance, he added.

Zhu was “a bit of a dupe,” defence lawyer Mitch Foster told the court.

He had never seen marijuana before moving to Canada and, although he knew the drug was illegal he didn’t grasp the seriousness of the offence.

Often the owners get the operation set up and then put others at risk — Zhu was one of those people, said Foster.

Zhu, who now lives in Vancouver, came to Canada from China in 2004 and is considered a permanent resident.

If Zhu were given more than a six-month sentence, he could be deported.

The Crown acknowledged a jail sentence of more than six months would impose an additional hardship on Zhu, said Sinclair.

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