JUNE 4, 2003 ARCHIVE
 
 
 

Two Toronto men convicted of illegal cannabis cultivation at Evergreen Resort


by Margo Little
GORE BAY ---Two Toronto men were found guilty of production of a
controlled substance at a trial held in Gore Bay Superior Court last
week. Chun Lee Cheung, aka Phillip Cheung and Lung-Ki Chan, aka Allan
Chan, were taken into custody January 12, 2001 after an illegal
marijuana farm was discovered at Evergreen Resort in Ice Lake.
Last Monday (May 26), Mr. Cheung, age 43, pled guilty to cultivation
of a controlled substance and later took the stand in defense of Mr.
Chan who entered a plea of not guilty. Both individuals had been
charged with production and possession of cannabis at the time of
their arrest.
The North York resident told court he had known Mr. Chan for about
four years. They had met at the Red Dragon Restaurant in Toronto and
developed a friendship. Although Mr. Chan did bring fuel and Chinese
groceries to Evergreen Resort, Mr. Cheung denied that his friend had
participated in the nurturing of the cannabis crop.
During his sleep overs at the resort, Mr. Chan stayed in the main
lodge and never ventured into any of the other buildings, according
to Mr. Cheung. He testified that Mr. Chan had no knowledge of the
illegal activity until a generator powering the grow operation caught
fire January 7, 2001.
During the fire, Mr. Cheung said he informed his friend, "I am
actually here growing marijuana; there may be trouble. Possibly the
police may come." Using a court appointed translator he denied
talking to Mr. Chan about the unlawful operation before that point.
On Wednesday court heard that Mr. Chan, manager of the Evergreen
Resort, had loaned Mr. Cheung a cube van to assist with a
construction project. He said he was not suspicious of the plan to
build a "winter sports" complex at 11059 Highway 540.
Mr. Chan claimed he was not concerned when the lease holder acquired
a generator for the premises either. "It's a family business," he
said through an interpreter. "Everyone takes part; it was a winter
sport type of business to my understanding."
He admitted bringing 15 barrels to Manitoulin Island at Mr. Cheung's
request for the purpose of building a dock. "I did deliver the
barrels but I am not certain if they contained diesel or not," he
said. "When I picked up the truck the barrels were empty."
A noisy diesel generator running 10 to 12 hours a day never caught
his attention, he stated.
Although Mr. Chan noted that rooms at the main lodge were "chaotic
and messy," he concluded that "it was like a human smuggling ring"
not a grow operation.
Franco Trinh, owner of Y2K Pineland Inc., was also called by the
Crown. As owner of Evergreen Resort, Mr. Trinh denied any knowledge
of the grow operation. "I don't even know what is marijuana," he told
court. He said the 60x10 foot building located near the lakeshore was
built sometime between October 2000 and his visit to the property on
January 21. When asked about the purchase of an industrial generator,
Mr. Trinh repeated, "I have no knowledge."
A lease agreement had been signed with Phillip Cheung, he said,
allowing use of the resort during the winter for a sum of $10,000.
Defence attorney Linda McDonald said her client "adamantly denied
involvement in the act of cultivation" of the plants. She argued that
Mr. Chan never participated in the day to day operation of the resort
from October 2000 to January 2001. When he brought the diesel fuel
from Toronto, he was doing a favour for a friend, she stated. "He
brought the fuel without knowledge of the actual purpose of the fuel
used to power the illegal operation," she concluded. "He was no more
guilty than any other delivery man" who carries supplies,
in her view.
Federal Crown prosecutor Joseph Chapman alleged that Mr. Chan was an
active participant in the organizing and setup of the operation. "We
know it was not a one man operation," he said. "The size and
sophistication of the operation indicates that more than one
person was in charge."
"We know Mr. Chan was part of it because he delivered fuel to the
operation," according tothe Crown. "We know Mr. Chan was at the
resort location of the illegal drug operation January 7 to 9, 2001
and also on January 6, 2001. Mr. Chan delivered fuel to run the
generator that supported the illegal grow operation."
The Crown also contended that Mr. Chan misled the police and helped
harvest the marijuana plants and transport them to Toronto.
Mr. Chapman asked presiding Justice Patricia Hennessy to view Mr.
Chan's evidence with great skepticism. Far from being "an innocent
visitor" at Evergreen, "he was an active participant from the
beginning to the shut down of the operation by the police," the
Crown said.
David Henderson, an electrician with 20 years experience in the
trade, appeared as a Crown witness. In describing the scene at
Evergreen after the generator fire, he noted that the electrical set
up was "quite unsafe" with connections that were "not done in a
proper manner."
He reported that a large 600 volt industrial type generator had been
installed to power several buildings. "The cables on the floor were
not the proper sized cables," he told court. "It's not normal to have
cables on the floor; people could trip on them or touch them and get
a shock. It was unsafe and I am sure no one ever inspected the
wiring; no one would approve that."
In addition, he viewed a system of transformers, timers, control
panels and 300 to 1000 watt lights in buildings housing plants. The
set up allowed the marijuana growers to generate more power than was
available from the Hydro One grid.
Gore Bay's fire chief, Mike Steele, also testified Tuesday. In
attending the blaze at Evergreen on January 7, 2001 he noted that the
generator at the scene was "excessively large." The shed housing the
generator was fully involved and difficult to save, he said. He
detected a strong smell of diesel from two fuel tanks near the fire.
Detective Constable Steve Redmond, the lead investigator in the
matter, executed search warrants at the resort. In the kitchen of the
two storey main residence he observed a garbage bag full of marijuana
plants. And in a bedroom he noted reflective material and vapour
barrier on the walls. Other rooms revealed 12 boxes of Growdan, a
fibreglass growing material, three new 1000 watt lights, and 11 five
gallon pails of Hydrobloom, a solution for growing plants. Marijuana
plants from 24 to 30 inches high were found in closets. In addition,
a 600 volt transformer wired in ten circuits was discovered. "There
appeared to be a stockpile of equipment," he said.
The search involved the main lodge, a pale yellow cottage nearby, a
pump house, a utility shed and a long newly constructed 60x10 foot
building hidden in the trees by the lake. The building set well back
from the highway was devoted exclusively to producing cannabis.
It took several days to seize, disassemble and catalogue plants and
equipment from four buildings.
The clandestine operation netted 2430 marijuana plants with a street
value in excess of $2 million, according to the Crown.
Evidence showed that 1269 plants had recently been harvested. The
cost of the equipment was estimated to be in the $50,000 to $100,000
range. Police also seized 28,000 grams of marijuana shakes.
In closing submissions Mr. Chapman characterized Mr. Chan as "a man
who will not and cannot tell the truth about his involvement in this
matter. The accused dances around the subject in the fashion of one
who will not and cannot tell the truth."
The Crown pointed out that Mr. Chan did not call the police or the
fire department when the generator caught fire. He also insisted
investigating officer Constable Michael Patterson interview him in
the cruiser and not in the main lodge. And Mr. Chan told hydro
employees to call first before coming to restore power to the resort.
Mr. Chapman said Mr. Chan's version of events lacked credibility and
accused him of "failure to come clean with the police."
Justice Hennessy agreed with the prosecutor that Mr. Chan's testimony
contained "numerous and glaring" inconsistencies. "There is a total
air of unreality about parts of his testimony," she said.
"On the whole I do not accept Mr. Chan's evidence," she concluded.
"Mr. Chan knew there was a grow operation and he provided supplies
for its survival. Without Mr. Chan, the operation could not begin or
thrive."
She determined that he was intimately connected to the grow operation
and thus just as culpable as Mr. Cheung. "I am convinced that he was
knowingly involved in the large scale operation by providing the key
element (the diesel fuel) necessary for the operation. This was no
family farm," she said.
Mr. Chan was found guilty of production of a controlled substance,
however, the charge of possession for the purpose of trafficking was
dismissed. Justice Hennessy ordered pre-sentence reports to be
prepared. Both men will be free on their own recognizance until a
date for sentencing is set August 30.
After the trial, Mr. Chapman expressed satisfaction with the outcome.
"It (the decision) will definitely act as a deterrent," he said. "It
will cause anybody considering setting up a grow operation in a small
community to reconsider their plan." In his view, the ruling will
act as an overall deterrent to illegal grow operations in both urban
and rural settings.
Detective Constable Steve Redmond agreed "the judge came to the right
conclusion" in the case. He acknowledged that the size of the
operation demonstrated that more than two people were involved.
The construction of a long narrow building near the lakeshore was
"labour intensive," he noted. However, apparently no neighbours
noticed since the bulk of the work was carried out at night.

 

Governance series part 1

EDITOR'S NOTE: In April of 2001, the Government of Canada proposed an
initiative in which an Act of Parliament referred to as the First
Nations Governance Act (an act which would set out in law how First
Nations are to be governed), would repeal those sections of the
Indian Act which deal with governance. This four-part series will
explore what is actually contained in the proposed legislation. The
first article will outline the basic premise of the legislation,
history and basic positions of Canada and the First Nations.

by Michael Erskine
The only point on which the Government of Canada and the elected
leaders of the First Nations seem to be able to agree upon is that
the Indian Act is an outmoded and inadequate document which needs to
be changed.
After that basic point all paths diverge. The First Nations demand
the complete repeal of the Indian Act, and the inclusion and
recognition of their inherent rights to self-government within the
Constitution of Canada. Any lesser piece of legislation will not be
acceptable.
The First Nations Governance Act is touted by Canada as a temporary
measure, a measure which is intended to fill the gap between the
repealing of those provisions of the Indian Act which deal with
governance issues, and the full institution of self-government of the
First Nations.
The First Nations, the government argues, need modern tools with
which to govern themselves, tools that are lacking in the Indian Act,
which derived from a process in which First Nations were governed by
the Federal government, not themselves.
With a stop-gap premise as a basic starting point, the Act cannot
hope but to fall short of the aspirations of First Nations as they
seek to regain full recognition their of sovereignty in Canadian law.
By its very definition, it is a continuation of a colonial system and
therefore an anathema to First Nation leaders, who demand what both
parties agree are their inherent rights, anything less is an
agreement to abrogate those rights and therefore, unacceptable.
King George III issued a royal proclamation in 1763 that recognized
the inherent title and rights of First Nations to their land, and set
the foundation that only the Crown itself and First Nations could
negotiate the sale or transfer of those lands.
When Canadian Confederation took place in 1867, the responsibilities
of the Crown towards the First Nations were given to the federal
level of government. The federal government was clearly the body
which negotiated with foreign powers and sovereign nations.
When the Canadian Constitution was brought home from Britain and
enacted as the 1982 Canada Constitution Act, section 35 of the new
Act recognized the existing aboriginal and treaty rights of the First
Nations. Section 35 also set out that to make any changes to that
recognition, or to Class 24 of section 91 or to section 25 of the
Constitution Act, 1867, a constitutional conference will be called by
the Prime Minister which includes in its agenda an item relating to
the proposed amendment, composed of the Prime Minister of Canada and
the first ministers of the provinces. Section 35 also states that the
Prime Minister of Canada will invite representatives of the
aboriginal peoples of Canada to participate in discussions on that
item.
No such conference has ever been called.
Instead, the government has elected to follow a series of steps to
deal with First Nation issues through legislation and negotiation.
The Dussault-Erasmus Royal Commission on Aboriginal Peoples,
delivered in 1996, warned against trying to 'tinker' with the Indian
Act and much of the First Nation position stems from the futility of
that approach.
The Assembly of First Nations (AFN) position is that Bill C-7,
further entrenches the Indian Act, an Act which they say is the
source of many of the legal and political problems facing First
Nations and Canada. They point out that the bill has cost in excess
of $15 million dollars without building a single new home or
preventing even one suicide.
In protest, the AFN announced they would boycott the consultation process and
refuse to participate.
Under the Canadian system of democracy, legislation without
consultation lacks legitimacy. By withholding that consultation,
First Nation leaders hoped to force the government to come to the
table and deal with the process of repealing the Indian Act solely
through negotiation with themselves.
First Nation leaders point out the government says it recognizes
First Nations have the right to govern themselves, yet it continues
to try to force its rules upon them on its own terms by continuing to
use the colonially inspired Indian Act.
The government responded by instituting a process that by-passed the
AFN and went directly to the people (and those leaders who would
participate in the process).
The Honourable Robert Nault, Minister of Indian and Rural Affairs,
the man who initiated the First Nations Governance Act, has claimed
to have consulted with 10,000 individuals and leaders in the two
years leading up to the introduction of the act through this
alternate process.
The AFN points out that the government's process has resulted in less
than one percent of First Nations members actually being consulted,
with most of the elected leaders of First Nation communities being
left out of the process.
After the initial consultations were conducted in the spring, summer
and fall of 2001, a Joint Ministerial Advisory Committee was
appointed by the Minister. The committee included First Nations
representatives and government officials, and was formed to provide
expert advice and guidance on the legislative options. This technical
panel presented its report to Minister Nault in March 2002.
The First Nations Governance Act is expected to be introduced in
Parliament early this summer.
The preamble to the First Nations Governance Act cites the
government's responsibility to provide good government,
accountability and economic development. It states that
representative democracy, including regular elections by secret
ballot, and transparency and accountability are broadly held Canadian
values and that effective tools of governance have not been
historically available under the Indian Act, recognizing that
document was not designed for that purpose but that bands require
effective tools of governance to fulfill the good governance needs
of their communities.
The preamble goes on to state that the Government of Canada has
adopted a policy recognizing the inherent right of self-government as
an aboriginal right and is providing for the negotiation of
self-government and goes on to claim that neither the Indian Act nor
First Nations Governance Act is intended to define the nature and
scope of any right of self-government or to prejudge the outcome of
any self-government negotiation.
In its final line the preamble states that the exercise of capacities
and powers under all Acts of Parliament are subject to the Canadian
Charter of Rights and Freedoms.
The First Nations Governance Act sets in law a number of codes which
each band must develop and make available to its membership during
normal business hours. Those codes would deal with leadership
selection, administration of government, including financial
management and accountability, and methods of redress for First
Nation members who disagree with the actions of the band and its
leaders.
The Act would also clarify the legal capacity of First Nations, set
out the law making and enforcement powers of First Nations and would
repeal both those sections of the Indian Act which deal with
governance and section 67 of the Charter of Rights and Freedoms,
which exempts the Indian Act from the restrictions of the charter.
The First Nations Governance Act is supposed to be a temporary piece
of legislation which will modernize the governance process for those
First Nations which have not yet negotiated a self-government
agreement with Canada, but in choosing this path, the federal
government is clearly stating that they expect the process of
negotiating self-government to take years, if not decades, to
complete. Major changes to the way Canada interacts with the First
Nationsseem to follow a quarter-century cycle.
Over the next three weeks, subsequent articles in this series will
examine the codes, powers and effects of repealed sections of
existing legislation which the First Nations Governance Act would put
in place.
 
NEMI on the verge of being smoke-free
by Cheryl Waugh
NORTHEASTERN MANITOULIN and the ISLANDS (NEMI) --- The town of NEMI
is on the verge of passing a non-smoking bylaw that would make public
places within the municipality 100 percent smoke-free, with the
exception of a bar, which will have to dedicate 50 percent of its
area as non-smoking effective the day after the passing of the bylaw.
The bylaw is expected to be passed at council tonight (Wednesday,
June 4), making the municipality 100 percent smoke-free in public
places on Thursday. That means restaurants, taxi cabs, the Little
Current Howland Recreation Centre and the Little Current Curling Club
would all become 100 percent smoke-free venues.
The Little Current Legion is currently falling within a gray area.
Legion club rooms are recognized as not being a public place, since
only members of the Legion are supposed to be allowed access. Legions
are deemed to be a private club, and are therefore not covered under
'public places' non-smoking bylaws.
There are a number of criteria a place must meet to become a private
club. They must have a membership, be non-profit, have a constitution
and an election of members, and an executive that is elected by the
membership.
Attempts by public bar owners to become private clubs failed in
Ottawa after owners realized that one, their establishments would
have to become non-profit, and two, because of elections a situation
could develop that the owner would not be the president of the club,
explained Councilor Al MacNevin, chair of the Parks and Recreation
committee, which developed NEMI's non-smoking policy. "They realized
their customers would have control of their establishments, and that
ended the private club threat."
The Little Current Legion is private, but routinely invites the
general public into its domain, thereby becoming a 'public place' and
falling under the bylaw.
"The Legion may be in trouble if they don't change," said Councilor MacNevin.
The question of the Legion bar was brought up by representatives of
the Anchor Inn, who went before council last Tuesday, May 27 to ask
for a phase-in of the non-smoking policy for their bar.
Originally, the bylaw included 100 percent non-smoking for bars from
the outset, however, after an effective presentation by Kelly O'Hare
and Rob Norris, council amended the bylaw so that bars would only
have to be 50 percent non-smoking, effective the day after the
passing of the bylaw. On June 1, 2005 they will have to be 100
percent non-smoking.
The Anchor, currently, is 100 percent smoke-free in its restaurant,
and 50 percent smoke-free in its bar.
At council, Ms. O'Hare said that her concern was that an immediate
implementation of the complete smoking ban would have a negative
effective on the business. "It would likely affect a 20 percent to 30
percent drop in bar sales. This will impact our ability to employ,
and will result in layoffs of as many as four permanent staff
members."
She also noted that the bar area is restricted to persons 19 years of
age and older. "What we hope to accomplish with this graduated
implementation of the bylaw is a chance for our customers to catch-up
with the rest of the population in terms of quitting smoking and to
allow us to rethink our business plan to allow for a decline in
sales," said Ms. O'Hare.
A second amendment to the bylaw will also allow the Centennial Manor
to keep its designated smoking room for residents. The manor is a
municipally owned facility and as such comes under the 'public
places' criteria for this bylaw. However, Sunsite Estates resident
Frank Reynolds, whose mother is in the manor and is a smoker, spoke
at council in favour of allowing the designated smoking room at the
manor to continue.
"This is their home," said Mr. Reynolds, "and I would suggest that if
smoking were to be banned in the public areas of the manor then the
residents themselves would have the right to smoke in their bedrooms,
which is not something that anyone would want. As far as I can tell
this bylaw does not restrict activities in the bedrooms of taxpayers."
He explained that the manor has a special enclosed and supervised
room for the residents' who smoke. The room is separate and vented
separately from the rest of the building so the risk of second-hand
smoke is negligent. The smoking room is also glassed in on the side
facing the nursing station so supervision can take place from outside
the room so that staff are not exposed in any large degree to
second-hand smoke.
"The smoking at the Manor is tightly controlled and regulated and to
ban it does no one any good," said Mr. Reynolds.
Council agreed to declare the designated smoking room at the
Manitoulin Centennial not to be a public place, allowing that room to
continue in its use after the non-smoking bylaw comes into effect.
The two amendments - the 50 percent non-smoking for the Anchor bar
and the Manor's exemption -delayed council's vote of the non-smoking
bylaw. It was supposed to have been voted upon last week, and if
passed implemented on June 1, 2003. Instead the two amendments were
voted upon in a recorded vote, and the bylaw was sent to the town's
lawyers for completion and will be returned to council at tonight's
meeting.
Bruce O'Hare, of the Anchor, commented that he was pleased for his
business and his staff that council decided to go with a 50 percent
phase-in for the bar, while Mr. Reynolds also said he was happy with
the results, calling it a 'wise' decision by council.
The two amendments passed 8-1, with Councilor Carl Ziegler the lone
vote against. He had wanted the issue to go back to committee for
further discussion, and called for a recorded vote to send the bylaw
back to the Parks and Recreation committee. That motion was defeated
5-4. Councilors Marcel Gauthier, Ron Lewis, Bill Koehler, and Ziegler
voted in favour of sending it back to committee. Councilors Kathleen
Bowerman, Jim Stringer, Ann McGregor, MacNevin, and Mayor Ken
Ferguson voted against it.
Councilor MacNevin replied that the committee's work was done, and
that it was now up to council to make comments and decide on the
bylaw.
In a later interview, Councilor MacNevin said he sympathized with the
people who want to go to a safe place to have a smoke, but he also
believed that in a few years a lot of people will be wondering what
the fuss was all about. He remembered that there was a time when a
smoker walked into a home he or she would ask if they could smoke.
"Now, they don't ask anymore, they just walk outside."
He also believed that the issue of developing a non-smoking policy
for public places should be a provincial responsibility. "The
province is pinning little town against one another and that
shouldn't happen. Who's responsible for healthcare and safety in
Ontario? The province. Safety standards shouldn't be a municipal
responsibility."
But with the absence of the province, and the growing threat of
liability issues, NEMI council will decide the issue for this
municipality tonight.

 
Wikwemikong incident

by Neil Zacharjewicz
KABONI - An incident involving a firearm prompted a massive police
response in the community of Kaboni last Thursday.
On Thursday, May 29, at approximately 3:44 pm, members of the
Wikwemikong Tribal Police Service received a 911 call to respond to
an incident on Webkamigad Road on the Wikwemikong Unceded Indian
Reserve. An argument erupted between 62 year old Joseph Daniel (Dan)
Lawrence Enosse and another band member during work in a lumber yard.
Mr. Enosse left the lumber yard, and later returned with a firearm.
He proceeded to discharge a single round. No one was injured in the
occurrence.
The Wikwemikong Tribal Police contacted the Ontario Provincial Police
(OPP) for their assistance in responding to the incident, and the
Emergency Response Team and the Tactical Rescue Unit, as well as
several other police officials, were called to the scene. A base of
operations was set up at the Wikwemikong Unceded Indian Reserve Fire
Department Two facility nearby, and blockades were set up on
Webkamigad Road. Over 15 police vehicles attended the scene,
including the Tactical Response Unit and an OPP communications
trailer.
By approximately 4:30 am on Friday, May 30, officers determined that
Mr. Enosse had left the area prior to the blockades having been set
up. Later that day, with the assistance of the Greater Sudbury Police
Service, Mr. Enosse was arrested at a local establishment in Sudbury.
Mr. Enosse is facing charges of Pointing a Firearm, Weapons Dangerous
to the Public, Uttering Threats and Assault With a Weapon. He was
held in custody pending a bail hearing, which was to have been held
on Monday.
The incident is currently under investigation. Senior Constable Diane
Nadjiwon of the Wikwemikong Tribal Police is the investigating
officer.