When can the sale of gardening supplies lead to a conviction for helping to produce marijuana in Ontario? In other words, when can the sale of legal goods to those who would use those goods for illegal ends be a criminal offence? The Ontario Court of Appeal provides some guidance in  R. v. Nguyen 2016 ONCA 182 , in a  case where the accused was ultimately convicted of aiding and abetting the production of marijuana.

Nguyen was the owner of a garden supply business. The products he 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 were illegal to possess.

The police started surveillance on Nguyen and his business. Police followed his customers and deliveries made using the company van. Some of the customers were involved in commercial grow-ops, where the police later found large amounts of marijuana, and products from Nguyen’s store. Nguyen had personally delivered supplies to some of these grow-ops. Nguyen was eventually arrested and charged on the basis of the police investigation of his business practices and, in particular, the discovery grow operations linked to four of his customers.

Trial Decision on Marijuana Production and Conspiracy

At trial, the judge found Nguyen guilty of conspiracy to produce marijuana. The judge concluded that Nguyen knew he was supplying, and intended to supply, products to marihuana grow operators, that he was aparty to an agreement to provide products for marihuana grow operations, and finally, that customers attending at the store were parties to the same agreement.

At trial, the judge also found that Nguyen guilty of aiding and abetting the production of marijuana. The judge found that Nguyen actually intended for his products to be used in the production of marijuana.

Court of Appeal Decision on Marijuana Production and Conspiracy

The Ontario Court of Appeal overturned the conspiracy conviction.  The Court of Appeal stated that the fact that Nguyen operated a garden supply store, even knowing that nearly all of his customers wanted the products for marihuana grow operations, was 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:

  1. There is no evidence of an overarching agreement to produce marihuana or possess marihuana for the purpose of trafficking to which Son and ASGS’s 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.
  2. There is, in general, no evidence of what ASGS’s purchasers ultimately did with whatever they purchased.
  3. 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.
  4. The transactions to which the appellant might have been a party through his business were separate agreements of purchase and sale of legal products.
  5. Whatever use the purchasers made of the unknown garden supply products, it was too remote from the appellant’s business’s sales to them.
  6. 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.

The Court of Appeal did, however, uphold the convictions for aiding and abetting the production of marijuana. Nguyen knew his products were destined for marihuana grow operations. Nguyen’s employee was acting under his instructions when delivering supplies to grow-ops. These findings by the trial judge were sufficient to support conviction for aiding production of marihuana and aiding possession of marihuana for the purpose of trafficking.

A 20 month jail sentence concurrent on each of the counts of production of marihuana and possession for the purpose of trafficking in marihuana was imposed.

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