QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 188 Date: 2018 06 25 Docket: CRM 19 of 2017 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN and CORY JAY GRAHAM and MELANIE AMY BOULETTE Counsel: Denis I. Quon for the Crown Tanner J. Daniels for the accused JUDGMENT SCHERMAN J. June 25, 2018 Introduction [1] Cory Jay Graham [Cory] and Melanie Amy Boulette [Melanie] are charged with, between August 31, 2016 and September 15, 2016, at or near Medstead in the Province of Saskatchewan: a. Unlawfully producing cannabis marihuana contrary to section 7(1) of the Controlled Drugs and Substances Act, SC 1996, 19 [CDSA]; b. Unlawfully possessing cannabis marihuana in an amount exceeding kilograms, for the purposes of trafficking, contrary to s. 5(2) of the CDSA; and c. Unlawfully having in their possession Canadian currency of value exceeding $5,000 knowing that all or part of the said property was obtained by the commission in Canada of an offence punishable by indictment contrary to s. 354(1)(a) of the Criminal Code, RSC 1985, C-46. [2] At the conclusion of trial Crown counsel applied to amend the indictment to cover the period March 1, 2016 to September 15, 2016. In Murray, 2003 SKCA 120 (CanLII), 241 Sask 101, the Saskatchewan Court of Appeal held that an amendment to an information expanding the time particulars of the offence can be made at trial based upon evidence that indicates the offence may have been committed within the amended timeframe. Since the evidence was to the effect that marihuana plants did not start arriving until early June, grant amendment of the indictment to cover the period June 1, 2016 to September 15, 2016. [3] Cannabis marihuana was being grown during the period and at the location particularized in the charges against them on property the accused owned. The central issues with respect to the charges are whether the Crown has proven beyond reasonable doubt that: a. They were unlawfully producing cannabis; b. They possessed the cannabis for the purposes of trafficking; and c. The currency in question was obtained by the commission in Canada of an offence punishable by indictment. [4] The defendants testified. Their evidence, in extreme summary, was that: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana or parties to its production; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. Background Facts [5] Having been alerted by provincial conservation officer that marihuana appeared to be in production on the property in question, the local RCMP detachment decided to investigate. It asked for the assistance of an RCMP emergency response team [ERT]. The ERT, consisting of approximately eight individuals, conducted surveillance, commencing in the late afternoon of August 14, 2016. The ERT’s role, if decision was made to enter the property, included securing the property, making sure there were no guns, establish perimeter and guard the site and any arrested individuals until the site and arrested individuals were turned over to the investigation team. [6] Their observations caused them to believe marihuana was being produced on the subject property. The evening of August 14, 2016 they testified they heard generator running, could smell marihuana and at 11:19 p.m. vehicle with one individual in it drove up to the site but shortly departed. During the day of August 15, 2016 they observed single vehicle with one individual in it drive up to the site and then leave. [7] They heard voices throughout their observations but those voices appeared to be coming from what was stated to be house closer to the lake. Based on other evidence the only house closer to the lake would have been the accused’s residence which was approximately 1/4 mile to the east. [8] Their observations led them to believe the site contained marihuana grow operation. general warrant was obtained mid-afternoon of September 15, 2016, and the ERT entered the property at approximately 7:00 p.m. on September 15, 2016. This approach was timed so that the setting sun would be in the eyes of any persons present on the site and thus make their approach less noticeable. [9] The initial plan was to enter the property pursuant to the general warrant, make more precise observations as to what was on the site and with that information obtain specific search warrant if justified. At the time they initiated this plan the site appeared to have no one present on it. [10] The property was fenced with page wire fence and locked gate. Within the property were two greenhouses. Shortly before their actual entry onto the property two male individuals drove up to the gate in pickup truck, entered the fenced in area and then entered the most southerly of the two greenhouses. The police entered the property through the then unlocked gate and approached the greenhouse the two individuals had entered. They deployed “flash bang” to distract the individuals, entered the greenhouse, told the two individuals that they were under arrest, took them to ground and handcuffed them. The two individuals were the accused Cory Jay Graham and one Oscar Gutierrez Reyes [Oscar]. RCMP members testified that these two individuals appeared surprised and that Oscar made the spontaneous statement “call the police”. [11] Approximately 15 to 20 minutes after the arrests were made, the accused Melanie drove up to the site in another truck, with two young children accompanying her. While not then arrested, she was kept under observation. [12] Members of the RCMP ERT searched the property including the greenhouses, the two trucks mentioned above, third truck within the fence and an ATCO trailer located next to the greenhouses. double barrel shotgun and rifle were found in the truck which brought Cory and Oscar to the site. The truck and firearms were Cory’s. There was also ammunition in the truck. The truck driven by Melanie had nothing of significance in it. [13] Found within the ATCO trailer were, inter alia: a. Health Canada “Personal-Use Production Licences” for marihuana, one in the name of Oscar Gutierrez Reyes and one in the name of Brooke Bettencourt. These licences had respective expiry dates of March 31, 2014, respective maximum indoor plant numbers of 390 and 59 and indoor production site addresses for locations in Ontario. These licenses were sitting on table inside the trailer; b. Electronics including computer to monitor the environment within the greenhouses; and c. Five bags of dried marihuana. [14] There was also found within the trailer various documents belonging to Cory that in general sense related to his previous work as consultant in the oilfield. Cory owned the trailer and under clause 14 of lease between Cory and Oscar, Cory was to provide an office shack at the property for security and maintenance personnel. [15] The two greenhouses contained some 750 marihuana plants. While the greenhouses had equipment for overhead irrigation, it was not being used and the plants were watered manually. The greenhouses had furnace fired heating system and were connected to the computers in the ATCO trailer to monitor temperatures. [16] Upon the ERT securing the site they informed the investigation team of the RCMP and turned Cory and Oscar over to the investigation team. The investigation team took over the investigation, conducted thorough search of the site, the ATCO trailer, the vehicles and the residence of Cory and Melanie located to the east of the greenhouse site. Numerous photographs were taken and exhibit items seized. box was found within the residence that contained $6,210 in cash, and it was seized. [17] Samples of the marihuana plants in the greenhouses were seized and sent for analysis. The balance of the plants were destroyed. The analysis confirmed the plants were indeed marihuana plants. That this was so was conceded by the accused from the outset. [18] The evidence clearly established that this was relatively sophisticated marihuana grow operation. The plants were healthy and some four to six weeks away from harvesting. [19] Corporal Michael Schmidt was tendered to provide opinion evidence. He was qualified as an expert entitled to provide opinion evidence with respect to the production, packaging and distribution of marihuana, including the characteristics of operations involved in the illegal production of marihuana as well as in respect of the pricing of marihuana and the jargon within illegal trafficking in marihuana. The Crown’s Position [20] In the proceedings the Crown acknowledged that the five bags of marihuana were not the accused’s property, but rather the property of Oscar. While the licences had expiry dates of March 31, 2014, the Crown agreed that the effect of two Federal Court decisions in Allard Canada, 2014 FC 280 (CanLII), 451 FTR 45 [Allard], and 2014 FCA 298 (CanLII), 324 CRR (2d) 78, was mandatory injunction extended the expiry dates of Personal-Use Production Licences issued under the Marihuana Medical Access Regulations, SOR/2001-227 (since repealed), until certain constitutional challenges were decided. [21] The Crown does not challenge that the expiry date of the licences here in question were extended or grandfathered by the Allard decision. However, its position is that: The licences were only valid for their specified growing location in Ontario and not at the accused’s site in Saskatchewan; The licences only permitted some 449 plants to be grown at those locations and not the some 700 plants that were being grown; If the accused were mistaken that these licences were validly in effect for their location that was mistake of law, not mistake of fact and thus is not defence for them; Notwithstanding the lease, which the Crown views as sham, the accused were in fact in control of the premises and actively participated in the husbandry of the plants and thus they were both producing and in possession of marihuana; The quantity of the marihuana being grown coupled with the conclusions to be drawn from their circumstances and various text messages they were involved in establishes they were producing the marihuana for the purposes of trafficking; and Based on the totality of the evidence, the only rational conclusion to be drawn in respect of the cash found in their residence is that it was property obtained by the commission of an indictable offence in Canada. [22] The Crown says the evidence of the accused should not be believed, that the totality of the evidence must be looked at and when attention is paid to things they themselves said in text messages they created it is clear that the accused were active participants in the marihuana grow operation and were in the possession for the purpose of trafficking in marihuana. The Accused’s Position and Evidence [23] It is undisputed that some 700 plants of marihuana were being grown on the accused’s property. As stated above, the defence evidence in summary was: a. The marihuana being grown on their property was being grown by another individual or individuals to whom they had leased the property for that purpose; b. They believed the marihuana was being grown under valid licences; c. They were not producing the marihuana; d. They did not possess the marihuana or if they were technically in possession, that possession was not for the purposes of trafficking; and e. The currency in question was not obtained by the commission in Canada of an offence punishable by indictment. [24] The Crown challenges the veracity of the accused’s evidence. Given their testimony, the application of the principles of W.(D.), 1991 CanLII 93 (SCC), [1991] SCR 742, [W.(D.)], is major element of this case. more detailed analysis of their evidence is required. [25] Cory’s work background was what he described as consultant in the oilfield, working both domestically and internationally. With the downturn in the oil and gas industry he was not actively so engaged in 2016. From 2012, Melanie and Cory owned and operated gas station and restaurant (Graham’s Gas Grill) on Highway #4 near Glaslyn, Saskatchewan which Melanie managed. They sold that business by March of 2016 but the sale was not completed until June of 2016. cheque in the amount of $70,880.28 issued on June 24, 2016 from their lawyer to Melanie representing their net proceeds on that sale [26] Melanie testified that she and Cory began discussing greenhouse venture to grow vegetables and she approached her brother David Boulette [David] who agreed to go into business with them under an arrangement where David would fund 70 percent of the cost, but Cory was to do all the work. She testified corporation “Maple D’s Leaf Products” [Maple D] was incorporated in which David and Cory were the shareholders. No corporate records were entered into evidence showing when, indeed if, the entity was incorporated, who the shareholders were, their respective shareholdings nor who the officers and directors were; although March 3, 2016 email of Melanie to Deanna at Farm Credit Canada [FCC] and David stated that Maple was incorporated with David as the sole director and that they would transfer title to the land to Maple in order for FCC to be first on title. [27] business plan dated “Feb 18, 2016” was submitted under the name “Maple D’s Leaf Products” to FCC seeking financing. Melanie testified this business plan was submitted by David. This business plan stated, inter alia: The project was built around highly successful businessman whose initial objective was to produce and supply lettuce to local and regional markets and to successfully apply “for cultivation and sale license under the MMPR system” (page 2); It was seeking financing for the purchase of equipment and development costs estimating it would begin to make profit in year two; The company was owned by its founder David Boulette with Melanie Boulette running the day-to-day operations at the greenhouse (page 3); The operation would initially utilize 4,000 square foot greenhouse to be expanded after the first successful harvest (page 3); David Boulette is successful businessman in various ventures over several industries and is expanding his portfolio into this area (page 5); and The personnel plan includes project managers who will oversee all design and construction of the hydroponics facilities and consultant specializing in hydroponics who works for David Boulette in other horticulture projects in Ontario (page 6). [28] There was limited evidence about David Boulette beyond the information contained in the documents submitted to FCC. These documents included: 2013 income tax assessment showing his net income to be $187,500 originating entirely from dividends; 2014 notice of assessment showing his taxable income to be $268,333; and net worth statement putting his net worth at $5,047,000 which included house worth $3,820,000 and U.S. house worth $650,000. [29] Clearing of trees on the accused’s property to establish greenhouse site was underway by February 16, 2016. Cory had found used greenhouses for sale in British Columbia on Kijiji. In early March he travelled to Duncan, British Columbia with two hired assistants to dismantle two greenhouses purchased for about $15,000 and to arrange for their shipment back to Saskatchewan. The shipment cost was about $3,000. David paid these costs. Photographs taken during the dismantling in Duncan show this was underway between March 24 and 27. The greenhouses arrived at the accused’s location by April but at that time snow was still on the ground. [30] The evidence does not provide precise information as to when construction of the greenhouses on the Graham/Boulette property started, although common sense suggests it would likely have started once the frost was out of the ground and the ground had dried sufficiently to permit construction. Cory’s testimony was that oilfield operations were shut down during spring break-up and he was able to undertake the construction along with two individuals he hired to assist. [31] Cory’s testimony was that at some point in May when construction was approaching completion he fell from ladder, shattered his left elbow requiring surgery and the insertion of four pins. He also tore the rotator cuff on his right shoulder which also required surgery; but that did not occur until eight months later. He testified that both arms were in slings, he was originally on drug, hydromorphone, which he did not do well on and so he was switched to OxyContin which it turned out he could not tolerate. He said that he felt highly intoxicated for about two months and life was pretty much haze until into July when he spoke to his doctor about getting him off the OxyContin and he went on medical marihuana for the pain for which he obtained licence. He testified that he began sending resumes out looking for work by August, but he was unable to return to that work until after his surgery in February of 2017 and he did not get back into oilfield work until that spring. [32] The testimony of Cory and Melanie was that following Cory’s injury there were discussions with David about what to do, that David mentioned he may be able to find someone to lease the property and he subsequently told them about an acquaintance, Oscar, whom they were told had licence to produce medical marihuana, was looking for cheaper place to grow and was interested in growing in Saskatchewan where there was more sunshine. [33] They testified that David and Oscar flew out in the latter part of May for Oscar to check out the greenhouses and an agreement was reached. Cory testified that Oscar came with copies of marihuana production licences in the names of himself, Brooke and one Walter Cabrera. He explained that the expiry dates were “grandfathered” but that he would have to get the production location addresses changed with Health Canada. The accused agreed in then handshake agreement to lease the greenhouses to Oscar if they were able to satisfy themselves that what Oscar was representing to them was correct. [34] Melanie testified she consulted with their lawyer Aaron and had telephone contact with Health Canada in an attempt to confirm what Oscar had told them. She testified that Health Canada advised her that they could not share details of individual licences by reason of privacy concerns but she was informed that court decision had the effect of extending expiry dates in licences and that licences could be so grandfathered. Relying on this and Oscar’s representations that he would get the production locations changed they agreed to lease the site to Oscar to grow medical marihuana under the licences of Oscar, Brooke and Walter. Subsequently they received from Oscar copy of letter from Health Canada that stated the new address for production licence for Oscar was their property. For reasons discussed below am satisfied that this document was forgery and probably was created by Oscar. Cory testified that both Brooke and Walter told him that the addresses on their production licences had been changed to their property. [35] Using various precedents she found online, Melanie prepared written lease which went through various drafts before it was executed on August 8, 2016. Her evidence was that most of the discussion of the terms occurred between David and Oscar, that they agreed the rental payment would be lump sum payment of $12,000 at the end and that David was concerned about getting back some of what he had put into the purchase of the greenhouses. [36] The lease contains many provisions that legally trained draftsman would not have included in such lease. There is language that appears to have its origin in leases of commercial property that would include base rent and additional rents for operating costs. The lack of legal sophistication in the preparation of this lease is obvious. That aside, the following terms of this lease are significant: f. “Premises” means the commercial premises at Acre Portion of LSD 2-21-51-15 W3 and comprises Leasable Area of 8000 square feet. 3. The Landlord agrees to rent to the Tenant the commercial premises municipally described as Acre Portion of LSD SE 21-51-15 W3, (the “Premises”) and comprises Leasable Area of 8000 square feet. The Premises are more particularly described as follows: The property and lease is in reference to the acres that the greenhouses reside on including the two greenhouses totalling 8000 sq. ft. The Premises will be used for only the following permitted use (the “Permitted Use”): Agricultural/medical use. 10. The Tenant covenants that the Tenant will carry on and conduct its business from time to time carried on upon the Premises in such manner as to comply with all statutes, bylaws, rules and regulations of any federal, provincial, municipal or other competent authority and will not do anything on or in the Premises in contravention or any of them. 14. The Landlord agrees to supply and the Tenant agrees to use and maintain in reasonable condition, normal wear and tear excepted, the following chattels: a. The landlord agrees to provide an office shack at the property for security and maintenance personnel. 22. The tenant is permitted to operate in this property under the agreement that he will only operate under the license provided to him by Health Canada. The owner also requires additional security features in place to protect the area from theft or vandalism due to the nature of the medical plant. The tenant will ensure personnel are at the property the majority of the time. The landlord has no control over the leased area once this agreement is signed, and must provide full access to the tenant and his staff. 28. The Tenant will not engage in any illegal trade or activity on or about the Premises. [37] Cory’s evidence was that after the handshake agreement was made with Oscar: a. Oscar, Walter and Cody Smeets [Cody] arrived in early June; b. David had arranged for them to initially stay at David’s mother’s place which was close to the accused’s residence; c. Oscar went back to Ontario while the other two stayed working in the greenhouses; and d. Oscar came back in Hummer with an RV trailer and brought with him small plants which Oscar described as clones. The RV trailer was parked on the site and was their accommodations. They also had tent. Melanie’s recollection and evidence was that Oscar came back with plants but that it was Walter and Cody who brought the trailer. [38] photograph dated June 15 shows small pots of plants spaced out within greenhouse partially covering the greenhouse floor space. An earlier photograph dated June 8, 2016 shows greenhouse that appears to then be empty of plants. Both Cory and Melanie testified that Oscar told them there were only 400 plants and the licences were for 500. [39] Cory testified that throughout the summer there was usually one of Oscar, Walter or Cody present, although they would go back and forth to Ontario. Melanie’s testimony was there was always one of them present. Brenda Bettencourt came out once as well. Cody was there for most of the summer and for significant period of the summer had girlfriend by the name of Melissa with him and she, for period of time, had her young son with her. [40] Cody and Melissa visited Cory and Melanie at their residence from time to time. Melanie’s testimony was that she did not like Cody, referencing that Cory liked to drink and this gave Cory the opportunity to go drink with Cody and have fire on the beach. Melissa and her son would come over so her son could play with Melanie’s children and he was present for birthday party of one of Melanie’s children. Walter was the next most present person and Oscar made several visits. [41] Cory testified that Oscar and his crew were hard to get along with and were not good tenants. In explaining this Cory referenced things not getting looked after, that they were messy, there was garbage in the compound, they whined about stuff including that they expected him to supply water right on the location and not to have to truck it from the lake. [42] July 29, 2016 text message exchange between David and Cory evidences that there was then already conflict between Cory and Melanie on the one hand and Oscar on the other. Melanie testified that during July 29 trip to Saskatoon, she had been asked by Oscar to pick up particular product or products for him. As evidenced by text message communications between Melanie and Oscar, she was having difficulty in identifying or finding the specific product Oscar wanted and it is clear that Melanie took offence at Oscar’s language or manner and reported her offence to Cory. Later that day Cory texted David words that suggested he was prepared to kick Oscar out. David responded stating “Okay but wait until after the harvest. We dont need him being snake and pulling his license”. [43] Cory, Melanie and their children went to Florida in late August and they made arrangements for Cody to feed their five dogs while they were gone. When they returned they found Cody and Melissa had made use of their house, the beach was mess and Melanie felt they had partied there throughout. She testified she stewed on this for few days and couple days later when she went down to the greenhouse site, after significant wind storm, she observed that some plastic covering and motor on one of the greenhouses was ripped off. [44] Melanie testified she and Cody “had words” during which Cody said his job was to look after the plants not fix the greenhouse. Cody then went to Cory and told him to calm his wife down. At this point Cory told Cody to get out. Cody packed up the trailer and left and when doing so took the licences telling Cory it was now an illegal grow op. Their testimony is that Cory then went to the site, placed locks on the gate into the compound and did not return to the site until September 15, 2016 at the time of the arrests. [45] Following Cody leaving there was text or chat communication among Cory, David and Oscar. The text or chat messages and the evidence generally makes it clear that David was attempting to mediate resolution of the conflict. Among those text or chat communications were the following: a. By Cory at 1:12 p.m. on September 13 (Exhibit P26, page 42): So what’s going on here? When Cody left he took the licences and was told it was no an illegal grow op. So now you want back in on this deal Oscar? That’s fine but let’s get somethings straight. Cody will not be coming back here. Period. That ship has sailed. when someone wants to come out here, I’m the first fuckin person who gets notified. Last fuckin checked, make the payments on the property. b. By David at 1:13 p.m. on September 13 (Exhibit P26, page 43): Oscar was coming told Mel. He is bringing the licenses back. Originally he wanted to bring Walter but Walter doesnt want to come so he convinced Cody. They are staying my moms and are renting there own car. Oscar is bringing some product that he owes me. He also wants to check on how things are looking. c. By Oscar at 2:27 on September 13 (Exhibit P26, page 46): Ya you did Cory ur arm has been broken go smoke another crack pipe sesously think you got to stop drinking it’s going to your head d. By Oscar at 2:31 on September 13 (Exhibit P26, page 47) Any way its illegal were evicted need my employees e. By Oscar at 2:32 p.m. on September 13 (Exhibit P26, page 45): Yo we aren’t coming back it’s an illegal op now Cause you and your wife are kids [46] Cory and Melanie testified that Oscar flew back into Saskatchewan and came back to their residence with the licences on September 15, 2016 the same day that they were arrested. Cory testified this was few days after he kicked Cody out. Given this evidence and the September 13 communications above, conclude that Cody was kicked out either September 12 or 13. Cory testified that when Oscar arrived they sat down in his house and discussed the situation to smooth things over. Cory testified that around 7:00 p.m. Oscar wanted to go over to the greenhouses and asked him to come to show him how to operate the furnaces. He stated that when the flash bang went off Oscar started screaming phone the police. [47] Cory testified that he was not involved in the growing of the plants, as far as he knew there were only 400 plants and that they were being grown pursuant to the Health Canada licences. He was never part of plan to sell the marihuana and he did not stand to profit from it except by virtue of the rental payment. [48] Melanie testified that while she had seen Cory at the greenhouse site drinking with Cody and he did go there to look after equipment supplied, she never saw Cory helping with the plants. She testified that while she had been asked to help repot the plants in June she never did because she was too busy [49] The evidence of the accused was that Melanie having sold the store and Cory being unable to work due to his injuries, they and their two children spent periods of the months of July and August away from their home including camping at Lac Des Isles and their lot at Lac-Clair, had trip to Edmonton and went to Florida for approximately 10 days in the latter part of August. Melanie estimated that over the summer they were away from their residence approximately one-half of the time. [50] Melanie testified they were told there were only 400 plants. She considered the plants to be the property of Oscar, Walter and Brooke and at no point possessed or intended to sell the produce. She acknowledged that on one trip to Saskatoon she agreed to pick up supplies for Oscar but states that in the final analysis she did not pick up anything for him and this occasion ended up with her and Oscar having the argument of July 29, 2016 referred to above. The Crown’s Position and the Evidence it Relies on [51] The Crown says the accused should not be believed and that when the evidence as whole is considered it is clear that the accused were active participants in the marihuana grow op in question and the appropriate inference to draw is that they were producing the marihuana for the purposes of trafficking. [52] In support of this position the Crown relies, inter alia, on the following evidence: a. From the outset the plan was to eventually grow marihuana as the business plan filed with FCC indicated and as Cory acknowledged in his testimony; b. An April 26, 2016 text (Exhibit P26 page 14) from Melanie’s phone to telephone number 1-226-929-2303 asking “How much top soil do we need?” with the argument by the Crown that the number is Oscar’s by inference from the fact that there is also found on Melanie’s phone photograph of Oscar of June 22, 2016 that the Crown suggests was sent from the phone number 1-226-929-2303 (Exhibit P26 page 6). On that premise the Crown then argues, given her testimony she had not met Oscar until he came to inspect the greenhouses in late May or early June, there are serious credibility issues with her evidence generally; c. The lease signed curiously does not require rent to be paid until December 31; d. The 700 plants in the greenhouses significantly exceeded the 400 permitted by the licences of Oscar and Walter; e. There is no record of Melanie calling Health Canada as she testified she did on two occasions; f. text message exchange from Melanie to her mother on July 4, 2016 references needing help potting 400 plants (Exhibit P26 page 12); g. The July 23, 2016 texts on Cory’s phone to 1-941-914-7513, (Exhibit P26 pages 35 and 33) stating inter alia: 1. Starting at indicated message time of 8:45 a.m. “If he’s such pro, he should have had us test the water in the very beginning!”, subsequent references to deficiencies in the plants and “he’s clueless”; 2. Starting at indicated message time 5:15 p.m. of “Ph water is too high” and “Ph is fixed, flushing plants today, and Mel: everyone else O”; h. The July 29, 2016 text messages between Melanie and Oscar related to Melanie picking product up for Oscar in Saskatoon (Exhibit P26 pages 26 to 29); i. The July 29, 2016 text messages between David and Cory where Cory is talking of throwing Oscar out and David is telling him wait until after harvest, we don’t need him pulling his licence (Exhibit P26 page 39 to 41); j. The texts between Oscar and Cory following Cory kicking Cody out (Exhibit P26 pages 42 to 47) where at page 42 Cory states that when someone comes out he is the first person to get notified since when he last checked he makes the payments on the property; k. The text of Cory to David at page 44 where he makes statement that “I work here 24 hrs day”; l. Various text messages or photographs of Melanie demonstrate what the Crown characterized as keen interest in marihuana; m. The fact that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator; n. The presence of many firearms and $6,210 in cash in their residence; and o. Text messages between Cory and one “Whozurr Paddy [Paddy] (Exhibit P32) with language suggestive of trafficking. Analysis of the Crown’s Position Regarding Credibility and the Evidence [53] Since the accused testified, application of the principles set forth in W.(D.) is required. What follows is composite of the instructions given in W.(D.) with an addition (the “secondly” below) added by the judgment of Wood J.A. in C.W.H. (1991), 1991 CanLII 3956 (BC CA), 68 CCC (3d) 146 (BC CA) at 155: “First, if you believe the accused, obviously you must acquit; “Secondly, if, after careful consideration of all of the evidence, you are unable to decide whom to believe, you must acquit; “Thirdly, if you do not believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit; “Fourthly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused.” In W.(D.) Cory J. also said the following at 757: In case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused’s evidence but still have reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as whole. See R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in R. v. Morin, supra [1988 CanLII (SCC), [1988] SCR 345], at p. 357. [55] There are aspects of the evidence of Cory and Melanie that believe and there are other aspects that am not sure what to believe. Looking at the evidence as whole see reason to be suspicious that the involvement of Cory and Melanie went beyond what they testified to. It is clear to me based on Cory’s communication with Paddy and indeed his own testimony that he was involved in illegal dealing in cigarettes. This is clear from review of the text messages found in Exhibits D4 and D7. However, in the final analysis am unable to conclude that the accused are being dishonest when they testify that their involvement with Oscar was to lease the greenhouses to him and in their purported belief that the marihuana being produced by Oscar was being produced under valid licences. [56] Crown counsel argues that words “if you have another pound ready to go” in the text messages in Exhibit P32 must be reference to marihuana because you do not sell cigarettes by the pound. While this isolated phrase in Cory’s communications with Paddy could relate to marihuana, “could” is not good enough. The balance of this conversation could equally well relate to cigarettes. Bulk tobacco can be sold by the pound, and gifts of tobacco are common in First Nations’ culture. It is clear they were dealing in cigarettes and since the marihuana crop in question was four to six weeks from being harvested conclude it is speculation to conclude this one phrase “another pound” was reference to marihuana. Cory’s later text of September 10 to Paddy “Gonna have 500 in 3-4 weeks too” is at least as likely to be reference to 500 cartons of cigarettes as anything else. [57] That the accused intended from the outset of their greenhouse project to eventually use the greenhouse to grow marihuana, if the legislation came to permit such and they were able to get licence, should in no way lead me to conclude that the accused were more likely to be involved in the illegal growing and trafficking of marihuana in 2016. Many individuals and corporations were doing the precise same planning. [58] The argument advanced that various text messages or photographs of Melanie demonstrates what the Crown characterized as keen interest in marihuana, and this assists in proof that she was during 2016 involved in illegal production and possession of marihuana for the purposes of trafficking, is to my mind non sequitur. If, as the accused have testified, they had plans to grow marihuana if it became legal to do so, it is logical that Melanie would have keen interest. She would want to learn what she could. [59] The argument that since the number 1-226-929-2303 appears associated with photograph of Oscar that came to be on Melanie’s phone on June 22, 2016 is not sufficient basis to conclude that she was not credible (having testified that she did not meet Oscar until his first visit in June) or that she was already communicating with Oscar in April about details of growing in the greenhouse. Curiously this number, along with another number that could also be telephone number, appears to have been assigned as jpeg identifier to this photograph. The evidence simply does not permit me to conclude this photograph was sent from 1-226-929-2303. [60] The April 26, 2016 exchange of texts starting with Cory texting Melanie at 7:04 a.m. that 76 cubic yards was needed per greenhouse 6” deep does not support the drawing of the inferences the Crown suggests. At 7:07 a.m. Melanie texts 1-226-929-2303 asking how much topsoil was needed 4” or 6”. At 7:08 1-226-929-2303 responds “6”. The accused testified they put topsoil in the greenhouses, but when Oscar and his crew arrived, they had it removed and the marihuana plants were in fact grown in individual pots. Photographs confirm this was so. Thus, it seems probable that someone other than Oscar (texting from 1-226-929-2303) was informing Melanie that 6” of topsoil was required. [61] conclude that it is illogical to conclude that Oscar would be advising Melanie in April of 2016 that 6” of topsoil was required when he, an experienced grower, would have known he would be growing the plants in individual pots. Further, it is also illogical that an experienced grower would in April be giving instructions to inexperienced people he did not know with plans to construct greenhouses in Saskatchewan and how much topsoil to place in the greenhouses to grow marihuana. [62] The evidence is that David was resident of Ontario. It was he who submitted the business plan to FCC to grow lettuce in the greenhouse. The information he submitted in that application attested to his involvement and experience in horticultural ventures in Ontario. In these circumstances logic suggests that the probability is that Melanie was communicating with David. Since have no direct evidence as to whose telephone number 1-226-929-2303 was and given the issues discussed above, find there is no basis to conclude that Melanie was in communication with Oscar in April of 2016. [63] The Crown has placed significant emphasis on the text messages of July 23 relating to the PH of the water and specifically the statement “Ph is fixed, flushing plants today. Mel: everyone else O”. However these texts must be assessed in their context. The evidence satisfies me that the water supply was the adjacent Birch Lake and that there was conflict between Oscar and Cory with respect to the suitability of that water, that Oscar expected water to be available on site as opposed to having to truck it up from pump that drew the water from the lake and then he complained about the quality of the water. It appears from the evidence generally that Oscar had expectations of Cory, whether as landlord or otherwise, with respect to the water. What is clear from the texts is that Cory is taking no responsibility for the problems that Oscar and Cody are complaining of. [64] In this exchange of texts Cory is venting to David about conflict between him and Oscar. It is often not possible to extract from the texts what portions are Cory’s own statements and what portion are him in effect repeating what Oscar and Cody are complaining to him about and what are his own observations and statements. do not know whether the statement “Ph is fixed flushing plants today” is Cory repeating what Oscar and/or Cody are saying they have done, whether Cory is attributing some solution with Ph problem in the water to Melanie and if so, how that leads to the conclusion that the accused were participants in the grow op. [65] When Cory asks David “Who’s actually running ur farm with o? I’m assuming not him. want to talk to the guy who grows for you. Not third party of info.”; it appears that Cory is seeking information in the context of what appear to be allegations or complaints by Oscar about problems in the water supply. am unable to conclude that the only rational inference to be drawn from this and other text messages the Crown relies upon is that Cory and Melanie were necessarily involved in the production. If they are being criticized for the water supply being provided, it would be reasonable for them to seek information from knowledgeable individuals. This text does corroborate that David was involved in “farm” operations in Ontario. Unexplained is the reference to “o” and what, if any, common operations Oscar and David had there. [66] The Crown argues that David’s text at page 41 of P26 “I’ll be there at the end to make sure there is no funny business with the cuts. He gets 25% Nothing else” calls for the inference that the product was being shared and thus the accused were producing and in possession. While this text could lead to the inference that such was possible or even probable, am unable to conclude it is the only reasonable inference to draw. The statement is David’s not Cory’s. It is possible David had deal with Oscar about who gets what cut. This does not prove the accused were participating. [67] The fact that Cory was prepared to kick Oscar’s crew off the property four to six weeks from valuable harvest, in circumstances where there is no evidence to support the conclusion that he and Melanie had any idea as to how to continue to care for this crop and harvest and prepare it for distribution, coupled with the fact that David intervened to get Oscar back on site, supports the defence position that they had no interest in the crop. The actions of David in arranging for Cory to accept Oscar back raises the possibility that he had an unspecified interest in the crop. [68] The expert evidence presented by the Crown was to the effect that the marihuana crop in question was very healthy and that the knowledge level required to run such large scale marihuana grow operation would be that of someone with “vast” experience in growing marihuana. There is nothing in the evidence to suggest that the accused had any such knowledge or experience. While they may have hoped to gain knowledge or experience for future legal operation by observing, it is not an offence to observe and learn. This, in the circumstances, is rational alternative explanation for the accused’s so described keen interest and willingness to provide accommodations that went beyond the strict scope of landlord’s responsibilities. [69] Any suggestion that Melanie would possess and contribute knowledge with respect to ph problem in the water seems unlikely given the evidence generally and with specific reference to her demonstrated lack of knowledge in her text messages six days later on July 29, 2016 where she ends up angry at Oscar because she perceives him as treating her badly when he asked her to pick up products which she knew nothing about. [70] do not conclude that because there is no record of Melanie calling Health Canada, as she testified she did on two occasions, that her evidence in this respect should not be believed. Based on the evidence presented conclude it is entirely possible that Health Canada would, in response to call from member of the public, decline to give information about particular licence on the grounds of privacy without making record of that call. Business records are made to record communications that are viewed as significant. There is nothing in the evidence to suggest that each and every call made is documented by Health Canada. [71] Melanie testified that she had been asked to help repot the marihuana plants and had been willing to do so and had discussions with her mother about also helping. The fact that there were such discussions and that she would involve her mother supports the evidence of herself and Cory that at all times they thought the activities being carried on were entirely legal under the licences that they had been provided. Melanie’s testimony was that as her commitments worked out she was unable to assist in the repotting. have no basis to reject this evidence as dishonest. Further, the reference in these emails to repotting 400 plants corroborates the evidence of Cory and Melanie that they were told there were only 400 plants. [72] In similar vein, the various text messages between David and Cory expressing concerns about Oscar pulling his licence and Oscar taking the position that after Cody was ejected and left taking the licences meant it was then an illegal grow op lend credence to the evidence of Melanie and Cory that they believed that the marihuana grow operation that was being carried on, in the greenhouses they owned, was licenced and legal. [73] Cory’s text of September 13, 2016 to David (Exhibit P26, page 44) where he said he had no problem with Oscar coming but not Cody and added “I work here 24 hrs day. It was too much for him to water the plants last time so that’s the end of it” need not be interpreted as Cory stating he worked at the greenhouses 24 hours day nor as implying he had to do watering because Cody was not. The evidence is that Cory and his family were only at their home about 50 percent of that summer and, shortly before Cody was sent away, the family had been in Florida. He does not state that he works at the greenhouse 24 hours day. The word “here” in literal sense would reference wherever he was at the time. What he intended by the words is uncertain. [74] If in fact Cory did assist with watering the plants, that assistance would not be inconsistent with providing an accommodation to tenant. It is only if such assistance was found to constitute the actus reus of illegal production that the Crown’s position that mistaken belief that in the authority granted by the Personal-Use Production Licences constitutes mistake in law needs to be considered. [75] It is most curious, perhaps suspicious, that the Saskatchewan Power electrical feed to the Graham/Boulette residence had been disconnected and the electrical supply was their own generator. However, their residence was significant distance from the greenhouses and there was no evidence that the power from the household generator flowed to the greenhouses. Indeed the evidence is that the greenhouses had their own generator. The lease provides that the tenant is responsible for their own electrical charges. While curious, it would be an inappropriate inference to conclude from this curious fact that it is probative of guilt of the charges laid. [76] While the Personal-Use Production Licences of Oscar and Brooke Bettencourt were expired, am satisfied that by operation of the decision in Allard that they continued to be operative provided the remaining terms of conditions were complied with. The evidence was that the accused early on identified the fact that the production locations needed to be changed on the licences and their evidence is that Oscar represented to them that this would be and was done. [77] purported letter from Health Canada changing the production location of Oscar’s licence to the accused’s property was entered into evidence as Exhibit P33. They testified Oscar provided this to them. am satisfied that this letter is in fact forgery, but have concluded that this forgery was likely the work of Oscar. The letter shows the Old Address to be 1001 Ottawa Street South, Kitchener, Ontario whereas the licence itself shows Oscar’s mailing and production address to be Petersburg, Ontario address. If the accused had forged the letter, they would logically have had scrupulous reference to the precise terms of the licence and this address variation would not have occurred. The accused can be faulted for being too trusting; but in the circumstances do not find their reliance on this letter to be either recklessness or wilful blindness. Legal Issues and Overall Analysis [78] In Vickers, 2016 BCCA 98 (CanLII) [Vickers], the British Columbia Court of Appeal said the following: 23 As is well-known, in circumstantial case, the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. The proper approach, as the judge recognized here, is not to examine each individual circumstance in isolation. Rather, the question is whether all of the evidence taken together proves an accused's guilt and is inconsistent with any other rational conclusion: Ngo at paras. 53-57. Although the burden of proving guilt always rests on the Crown, that burden does not include an added burden of negating every speculative conjecture consistent with innocence: R. v. Tahirsylaj, 2015 BCCA (CanLII) at para. 39. Unlawful Production [79] Other than the presence of Cory in the greenhouse at the time of his arrest, there is no direct evidence that Cory had any involvement with the husbandry operations at the greenhouse. The same applies to Melanie. Cory’s evidence was that he was there at the time of arrest because Oscar had asked him to come to show how to light the furnace. Melanie’s evidence was that Cory would deal with equipment issues at the greenhouses. In asking the court to find the accused guilty as charged, the Crown does so by asking the court to draw inferences from circumstantial evidence. [80] For the reasons outlined in the section above have concluded the accused’s actions are not inconsistent with rational conclusions other than that they are guilty of the charges. Their actions and communications could be consistent with landlord/tenant relationship with tenant whom they reasonably believed to be conducting legal marihuana grow operation. [81] The Crown argues that should find the lease to be sham, based upon inferences drawn from the text message communications and other circumstantial evidence. The text messages in question have been proven as facts; but as stated in Vickers, in circumstantial evidence cases the trier of fact must be satisfied beyond reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. [82] am unable to conclude that the accused’s evidence in respect of the lease and their lack of involvement in production of the marihuana in question is untruthful. There is reason for the Crown to be suspicious; but good reason to be suspicious is not proof beyond reasonable doubt. I have concluded it is possible that the lease represented the actual arrangement between them and Oscar, that they believed only 400 plants were in the greenhouses and that the grow operation being carried on under Oscar was a legal grow operation. [83] In Jackson, 2007 SCC 52 (CanLII), [2007] SCR 514, the Supreme Court of Canada confirmed an earlier decision that held mere presence at the scene of crime does not prove culpable participation in it. In that case conviction for production was upheld because the appeal court held it was open to the judge, based on all of the circumstantial evidence, to conclude that the accused’s presence was culpable. The factual situation there permitted the conclusion there was no rational explanation for the accused’s presence in the remote location other than his participation in the production. It did not involve evidence of lease arrangement and evidence of belief that the operation was lawful one. [84] leave for later discussion the Crown’s argument that any mistake Cory and Melanie may have been operating under was mistake of law, which is not defence to the charges. It is trite law that mistakes of law cannot negative the required mens rea for an offence. We are all presumed to know the law. But both actus reus and mens rea must be present for finding of guilt. The following discussion addresses the actus reus of the offences of unlawful production and possession for the purposes of trafficking. [85] The Crown has not satisfied me beyond reasonable doubt that either of the accused were either actively involved or party to the production of the marihuana. The CDSA defines “produce” in s. 2(1) as: 2(1) to obtain the substance by any method or process including: (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained There is no direct evidence that either of the accused participated in cultivating, propagating or harvesting the marihuana or in any other activity relating to the husbandry operations within the greenhouses. [86] Occasional presence to observe or for other purposes related to landlord’s status or role cannot constitute being involved in the production. The actus reus of the offence requires direct actual involvement in the husbandry process or involvement as party to the offence. The evidence does not satisfy me that the accused were parties to the offence of illegal production. The circumstantial evidence permits other rational conclusions for their orthogonal involvement. [87] When Cory provided maintenance to the equipment or went with Oscar on September 15, 2016 to show him how to light the furnace, this quite rationally could have been in satisfaction of his responsibilities as landlord or as an accommodation to his tenant. While Melanie was apparently willing to obtain products for Oscar when she travelled to Saskatoon, the evidence is that she did not in the final analysis obtain any products for Oscar to use in respect of his husbandry of the marihuana. Thus she did not in fact do anything to aid Oscar to commit an offence, if in fact Oscar was guilty of illegal production of marihuana. [88] The test to determine party liability in regard to whether someone is aiding and abetting the illegal production of marijuana was summarized in Pavalaki, 2013 BCSC 990 (CanLII) (aff’d in 2014 BCCA 491 (CanLII)): 40 Section 21(1) of the Criminal Code provides: 21.(1)Every one is party to an offence who a) actually commits it; b) does or omits to do anything for the purpose of aiding any person to commit it; c) abets any person in committing it. 41 “Aiding” and “abetting” are often referred to collectively but these acts are independent of each other. "Aiding" in s. 21(1)(b) involves assisting or helping principal to commit an offence whereas “abet” in s. 21(1)(c) includes encouraging, instigating, promoting or procuring the commission of crime: see R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at para. 26; and R. v. Briscoe, 2010 SCC 13 (CanLII), [2010] S.C.R. 411 at para. 14. 43 Abetting in the commission of the offence requires at least encouragement; there must be, at minimum an act to facilitate the commission of the offence, not passive acquiescence or mere presence. The fact of the accused’s presence at the property must be bolstered by circumstances which show that the only rational inference to be drawn is that the accused was aiding or abetting in the production of the marihuana. 46 In addition to the act of aiding, section 21(1)(b) requires proof that the accused has performed the act “for the purpose of” aiding the principal to commit the offence. [89] Although intent and knowledge can be inferred from the circumstances, accidentally aiding and abetting does not attract criminal liability. The Court in Ngo, 2009 BCCA 301 (CanLII), explained: 52 ... an individual may be found guilty of production as either principal, or as party who aids or abets the principal: Hubble [2002 BCCA 561], at paras. 10, 15; Criminal Code s. 21. In grow op case, an accused may be found to have aided or abetted in the production of marijuana by maintaining the environment in which the marijuana is produced, with the purpose or intent to assist in the crime. 87 The appellant relies upon R. v. F.W. Woolworth Co. Ltd. (1974), 1974 CanLII 707 (ON CA), O.R. (2d) 629, 18 C.C.C. (2d) 23 (C.A.), for the proposition that an individual who “incidentally and innocently” assists in the commission of crime cannot be guilty as party to the offence. The respondent takes no issue with the proposition that in order to find the appellant guilty as party to the offence of marijuana production, the trial judge had to find that the appellant had the necessary mens rea: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] S.C.R. 825 at paras. 37-38, 116 C.C.C. (3d) 334. In the case at bar, it was open to the trial judge to infer knowledge and an intention to aid or abet from all the circumstances and he did so. [Emphasis added] [90] The mens rea element for someone who aids in the production of marihuana is distinct mens rea from that of the principal. The mens rea must involve an intention to aid the principal in what the aider knows or should have known was an illegal act. Innocently providing aid does not constitute the required mens rea. Possession for the Purposes of Trafficking [91] There are here two essential elements to the offence of possession for the purposes of trafficking. The Crown must prove both possession and that the possession was for the purposes of trafficking. Section of the CDSA adopts the definition of “possession” in s. 4(3) of the Criminal Code, which reads as follows: (3) For the purposes of this Act, (a) person has anything in possession when he has it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [92] Traffic is defined in s. of the CDSA as meaning: traffic means, in respect of substance included in any of Schedules to V, (a) to sell, administer, give, transfer, transport, send or deliver the substance, (b) to sell an authorization to obtain the substance, or (c) to offer to do anything mentioned in paragraph (a) or (b), otherwise than under the authority of the regulations. [93] In Pham (2005), 2005 CanLII 44671 (ON CA), 203 CCC (3d) 326 (affirmed by the Supreme Court of Canada at 2006 SCC 26 (CanLII), [2006] SCR 940) the Ontario Court of Appeal summarized the law with respect to possession as follows: [14] Section 4(3) of the Code creates three types of possession: (i) personal possession as outlined in s. 4(3)(a); (ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and (iii) joint possession as defined in s. 4(3)(b). [15] In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. See R. v. Caldwell (1972), 1972 ALTASCAD 33 (CanLII), C.C.C. (2d) 285, [1972] W.W.R. 150 (Alta. S.C. (A.D.)); R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417, [1996] O.J. No. 1106 (C.A.). [16] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent, and measure of control on the part of the person deemed to be in possession. See R. v. Terrence, 1983 CanLII 51 (SCC), [1983] S.C.R. 357, 147 D.L.R. (3d) 724; R. v. Williams (1998), 1998 CanLII 2557 (ON CA), 40 O.R. (3d) 301, [1998] O.J. No. 2246 (C.A.); R. v. Barreau, 1991 CanLII 241 (BC CA), [1991] B.C.J. No. 3878, 19 W.A.C. 290 (C.A.); and R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (C.A.). [17] The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. (QL): There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of scale in bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge. The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge. [18] The onus is on the Crown to prove beyond reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, at p. 448 C.C.C., [page 407] Martin J.A. noted that the court may draw “appropriate inferences from evidence that prohibited drug is found in room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”. [94] The direct evidence does not satisfy me that either of the accused ever had personal possession or control of the marihuana plants. Nor does the circumstantial evidence satisfy me that they had joint or constructive possession by virtue of some arrangement or agreement with Oscar. [95] The Crown argues that Cory retained some level of control over the premises and thereby had possession or control of the marihuana. The lease provides: It is solely for production of personal medical marihuana within the terms of the lessees’ Health Canada permit; The tenant will comply with all statutes and laws; The tenant is to have quiet enjoyment; and In paragraph 22 the tenant will only operate under the licence provided by Health Canada, is to provide additional security features given the nature of the plant and the landlord has no control over the leased area once the lease is signed. Retaining some measure of access to and control of the premises, buildings and equipment as landlord and engaging in activities to operate, maintain or repair the structure and equipment is quite different thing than having possession or control of the marihuana being grown within leased premises. Under the provisions of the lease the landlord would have no possessory interest in the plants nor right to exercise any control over those plants. [96] Even if there is an argument that by virtue of Cory’s control of the premises as landlord, he thereby had some form of possession or control of the marihuana, the evidence does not satisfy me that such possession was for the purposes of trafficking. am not satisfied that as landlords Cory or Melanie could be said to possess the marihuana for the purposes of trafficking which is defined as “to sell administer, give, transfer, transport, send or deliver”. Under the terms of the lease they would at most be allowing Oscar to take what was his property. The Mistake of Law Argument [97] The Crown relies on the Ontario Court of Justice decision in Zheng, 2015 ONCJ 30 (CanLII) [Zheng], for its position that mistaken belief in the validity of licences is mistake as to law which does not provide defence to possession and possession for the purposes of trafficking charges. This argument is made in the context of the mens rea or mental element of the offence and is moot if the Crown has not proven the actus reus of the offences. Nonetheless because the Crown has placed significant emphasis on the argument now address it. [98] find the Zheng decision distinguishable on the facts. The defendant there was an employee of the producer of the marihuana and was providing security and other services in respect of the marihuana. On this basis the court found him to be in possession or control and then found possession for the proposes of trafficking. The trial judge found the defendant to be in fact in possession by virtue of his work duties. [99] Similarly the Crown relies on the decision in Lima, 2017 SKCA 108 (CanLII) [Lima], where at para. 25 the Court of Appeal stated “we note the very strong argument that mistaken belief in one’s authority to transport marijuana is not mistake of fact, but rather mistake of law for which no defence is afforded” citing Zheng. In Lima the accused was found guilty of trafficking in marihuana in circumstances where he had actually harvested, packaged and shipped the marihuana. He defended and appealed on the basis that he believed he was entitled to do this under licence of his brother whom he was assisting. It is to be noted that Lima’s actions constituted the actus reus of trafficking and as consequence the trial judge concluded his mistaken view of the law did not give him defence to the offence charged. [100] Moving beyond the actus reus of the offence, the mens rea required to be found guilty as party to an offence must surely involve the actor having knowledge or being willfully blind to the fact that the aid or assistance being provided was related to the commission of criminal offence as opposed to some innocent act. mistake in law by Oscar as to whether his licence permitted him to carry on the activity would not be defence for him to charge of possession or trafficking. It makes sense that when person himself personally performs the actus reus of an offence, mistaken belief in the law cannot operate as defence. [101] Should party whose actions unwittingly aid person to commit criminal offence be held to have him or herself committed that offence? Can it not be properly concluded that party lacks the necessary mens rea to aid or abet an illegal act if they are operating under the mistaken belief that the party who they assist is not doing anything illegal. [102] In Pappajohn, 1980 CanLII 13 (SCC), [1980] SCR 120, Dickson J., albeit in his dissent, explained the parameters wherein mistake is defence at page 148: Mistake is defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as negation of guilty intention than as the affirmation of positive defence. It avails an accused who acts innocently, pursuant to flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is defence though, in the sense that it is raised as an issue by an accused. [103] In law the mistake does not need to be solely of law or fact, as mistakes based on mixed fact and law can be exculpable. In Davidson (1971), 1971 CanLII 1199 (BC CA), CCC (2d) 509 (BCCA), the British Columbia Court of Appeal explained at page 516: If indeed there was mistake of law, then juxtaposed with that mistake was mistake of fact, namely, the mistaken belief of the appellant that the mineral claims had been duly recorded in his name under the circumstances described. As was said by Dixon, J., in Thomas v. The King (1937), 59 C.L.R. 279 at p. 306; approving the judgment of Jessel, M.R., in Eagles field v. Marquis of Londonderry, [1876] Ch.D. 693 at p. 702 (C.A.), “But, in any case, in the distinction between mistakes of fact and of law, mistake as to the existence of compound event consisting of law and fact is in general one of fact and not mistake of law.” [104] In Legrande, 2014 ABCA 192 (CanLII), 575 AR 355, leave to appeal to the Supreme Court of Canada refused, the Alberta Court of Appeal found that “a mistake about the scope or extent of lawful authorization is mistake of law, not of fact”. In this case two aboriginal hunters shot at decoy moose located on an animal sanctuary where hunting was prohibited. The hunters argued that although they were aware that there were restrictions regarding where they could hunt, they were mistaken as to their authority to hunt on the sanctuary. Though distinguishable factually, the following excerpt is helpful in clarifying the line between mistake of fact and law: 13 The appellants rely on R. Chapin, 1979 CanLII 33 (SCC), [1979] SCR 121 in which the appellant was acquitted of hunting in close proximity to bait, because she did not realize there was bait in the area. That was found to be mistake of fact, but the decision is distinguishable. If Chapin had known there was bait in the area, but did not know that hunting near bait was illegal, she would have been operating under mistake of law. The present appellants were operating under mistake of law as to the legality of hunting where they were, not under any mistake as to the physical attributes of the area. R. Alphonse (1993), 1993 CanLII 4517 (BC CA), 80 BCLR (2d) 17, 83 CCC (3d) 417 (CA) also does not assist the appellants. In Alphonse the appellant did not realize that the land on which he was hunting was privately owned. An error as to the title of land was found to be an error of fact, not law. Alphonse knew that he was not allowed to hunt on private land, and there was no error of law involved. [105] On the facts as find them here, the defendants were aware of the laws in place to regulate the production of medicinal marijuana. That is they were aware that the operation needed to be property licensed. They were not mistaken about the requirements of the law. [106] Rather the mistakes they made were twofold: They were mistaken not about the scope of the authority, but that authorization had been granted to grow at the location. This mistake, arguably legal, was coupled with mistake about set of facts. They held mistaken belief that the information contained in the letter provided to them by Oscar was accurate. As result, the mistaken belief of fact rooted their misunderstanding of the authority to grow marihuana at the location. Such mixed mistake exculpates because the belief demonstrates mental state inconsistent with that required for guilt. [107] When the accused did not him or herself commit the actus reus of the defence but it is being alleged that the accused is guilty as party by reason of providing some assistance to the active offender; then reasonable mistaken belief that the active offender was not performing an illegal act is, in my opinion, more properly classified as mistake of fact as opposed to mistake of law. The Possession of Property Obtained by Commission of an Indictable Offence [108] am not satisfied on the evidence that the $6,210 in cash found in their house was obtained by the commission of an indictable offence. The accused’s evidence was that these funds had their origin in the recent sale of recreational trailer sold by them. The marihuana being produced was not ready for harvest and sale and thus the funds could not logically have had their origin in that product. While there was evidence of the illegal sale of cigarettes, there is no evidence proving that such activity as occurred was such as to constitute an indictable offence or was occurring at such level as to generate proceeds in this amount. am not in position to disbelieve the accused’s evidence as to the origin of these funds. Thus the circumstantial evidence surrounding these funds is not such as to be inconsistent with any reasonable alternative but guilt of the accused. Conclusion [109] I find the accused not guilty on all counts.
HELD: The accused were each acquitted of all charges. The court believed the evidence provided by the two accused and found that it was possible that the lease represented the actual arrangement between them and O.G. and that they believed that there only 400 plants in the greenhouses and they were part of a legal grow operation. The letter provided by O.G. purporting to change the address of his licences was found to have been forged by him. Regarding the possession for the purpose of trafficking, the court found that it was not satisfied on the evidence that either of the accused ever had personal possession or control of the marijuana plants nor that they had joint or constructive possession by virtue of some arrangement with O.G. The accused had explained that the cash seized by the police from their house had been received by them after they sold a trailer.