R. v. Savary, 2014 ONCJ 424

Court Information and Parties

Informations No.: 13-4370, 13-4371 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mark Aaron Savary

Heard: June 23-27, 2014 Reasons: June 27, 2014

Counsel:

• Ms. Frances Monardo for the Crown
• Mr. David Laikie for Mr. Savary

KENKEL J.:

Introduction

1Mr. Savary was producing cannabis oil in his condominium apartment using heated isopropyl alcohol when the liquid exploded in a flashover fire causing serious burns to Mr. Savary and extensive fire damage to the bathroom of his unit. The Richmond Hill Fire Department responded to the alarm and discovered the injured Mr. Savary and the drug production operation.

2Mr. Savary is charged with three criminal offences in relation to the fire and four drug offences in relation to the production and possession of drugs. Both Informations were tried together on consent.

3Mr. Savary does not dispute that he was in possession of the various controlled drugs found in his unit nor does he dispute that he was attempting to produce cannabis resin when the fire occurred. Two issues remain – whether the Crown has proved that the production and possession of the cannabis resin was for the purpose of trafficking and what level of criminal culpability attaches to the accused's actions that caused the fire?

Production for the Purpose of Trafficking

4The Crown submits that the volume of the liquid found being made into resin and the paraphernalia about the house are inconsistent with personal use and show that the accused was engaged in trafficking cannabis resin.

5This case is unusual in that Mr. Savary admits he produces and traffics drugs. He maintained a commercial level grow operation on a rural property and sold his product. His cellphone contains video clips of him inside the grow operation showing the quantity and quality of the plants and the commercial machine he uses to process the plants into a finished product. He is now serving sentence in relation to that operation.

6As for the solvent solution found in his home, Mr. Savary explained that he has health issues including glaucoma and asked his doctor and an opthamologist for a medical license for marijuana but was refused as the opthamologist did not feel it was ethical to prescribe a drug that was not clinically proven. He says he self-medicates with marijuana and now through his research he's concluded that marijuana is almost a miracle plant which is good for general health and might even cure cancer.

7Mr. Savary testified that the medical benefits are obtained primarily from raw, unheated marijuana which he processes as juice and then freezes or processes into a molasses like resin which can be ingested with food. He stated that marijuana in the raw form contains little THC and would be of no commercial value. The raw, unheated state preserves the other cannabinoid compounds that he believes assist with health.

8Mr. Savary said that he takes the "shake" or leftover waste product from his grow operation and extracts cannabinoids from that. The low level of heat applied to evaporate the solvent he says does not destroy the cannabinoids and does not activate the THC. The resulting molasses like resin is sticky, would be a mess to distribute and has no psychotropic properties.

9The Crown's expert had extensive experience with drugs and drug trafficking in the criminal context. Understandably he was not as familiar with the health claims related to marijuana use or what THC levels would obtain if marijuana were processed in its raw form.

10Mr. Savary's testimony that he is concerned with health issues and believes in the medicinal benefits of marijuana is supported by the documents and video DVD's found during the police search of his unit which tout various health claims in relation to marijuana use including raw marijuana use.

11While a large volume of solvent mixture was found in his apartment, neither the accused nor the Crown's expert could say exactly how much resin would result. While it would not be a small amount, in the context of someone who is committed to daily marijuana use, it's not plain that the amount of resin would be inconsistent with personal use.

12The police reviewed the accused's text messages stored on his cellphone and the results are detailed in an 88 page report. The Crown submits that only two of those messages are relevant. The first message refers to Mr. Savary providing "three women" $3000 cash and a quarter pound of "Kush". Mr. Savary testified that the message refers to his paying cash and marijuana to three women for their help with the harvest at his grow operation. The second message referred to "stuff left in the freezer" as being bad and asked for fresh "stuff". The Crown submits and the accused agrees this latter message refers to his sharing the frozen marijuana juice with others.

13The Crown's expert testified that the "young women" message could refer to trafficking. The reference to "three young women" is sometimes used as a coded reference to drug amounts. He agreed that Kush referred to a strain of marijuana. Whether or not that message is related to trafficking or production it's plain that it refers to cannabis marijuana and not cannabis resin. The text messages do not provide support for the Crown's assertion that the accused was trafficking the particular drug cannabis resin as alleged.

14In cross-examination Mr. Savary was asked to explain and expand upon his reasons for marijuana use, but his central assertion that the resin was being produced for personal use was not effectively challenged.

15I'm mindful that the definition of trafficking in Section 1 of the Controlled Drugs and Substances Act S.C. 1996 c.19 includes giving or transferring a substance. There is evidence that he commercially trafficked bulk marijuana and that he gave a friend some frozen marijuana juice. There's no direct evidence that he did gave or transferred any marijuana resin.

16While the volume of cannabis liquid and the presence of small vials and other items in the unit indicate the accused could have shared or sold the cannabis resin he produced, considering the evidence as a whole I find that his explanation as to personal use might also reasonably be true.

Recklessly Causing Fire

17Both parties agree that the explosion and resulting fire was not intentionally caused. The Crown submits that the accused recklessly caused the fire on a property that he knew was occupied by others contrary to s.433 (a) of the Criminal Code.

18Recklessness "… is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance." R. v. Sansregret, [1985] SCJ No.23 at para.16.

19Mr. Savary knew that his drug production method using isopropyl alcohol in a confined space in a residence with a cooking appliance not designed for that purpose was dangerous and could result in fire. He took some precautions to try to reduce the risk and took the chance that it would work. The fire caused $16,854.59 damage to property as alleged and injury to Mr. Savary.

20Mr. Savary subjectively appreciated that heating a large amount of a volatile solvent in a confined space put him and those around him at risk. The fact that he had successfully done so in the past did not reduce the risk on this occasion but might explain why he was prepared to take that risk again. He was a resident of a large condominium building and knew that the other units in the building were inhabited.

21I find that the Crown has proved beyond a reasonable doubt that the accused recklessly caused damage to the condominium unit knowing that the property was occupied by others contrary to s.433 (a) of the Criminal Code.

Conclusion

22On Information 13-4370 alleging various offences in relation to the explosion and fire, I find that the Crown has proved count one beyond a reasonable doubt. There will be a finding of guilt on the s.433 (a) offence. The remaining two alternate counts on that Information arising out of the same transaction are stayed.

23On Information 13-4371 relating to various drug offences, I find that the Crown has proved beyond a reasonable doubt that the accused produced and possessed cannabis resin as alleged, but has failed to prove on that standard that trafficking was the purpose. The accused will be found guilty of production of marijuana resin contrary to s.7(1) of the CDSA. The Crown has failed to prove count two alleging possession of cannabis resin for the purpose of trafficking. Simple possession of resin is an included offence, but the alternate count 3 is also addressed to simple possession of the resin. The accused will be found not guilty on count two and guilty on count three. Both parties agree that the Crown has proved count 4 alleging simple possession of marijuana.