R. v. Baldasaro, 2009 ONCA 676

CITATION: R. v. Baldasaro, 2009 ONCA 676

DATE: 20090923

DOCKET: C48735 & C48736

COURT OF APPEAL FOR ONTARIO

Moldaver, Feldman and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Reverend Brother Michael Baldasaro and Reverend Brother Walter Tucker

Appellants

Reverend Brother Michael Baldasaro, acting in person

Reverend Brother Walter Tucker, acting in person

Antoinette Issa, for the respondent

September 15, 2009

On appeal from the convictions entered on November 28, 2007 and the sentences imposed on April 25, 2008 by Justice John Cavarzan of the Superior Court of Justice, sitting with a jury.

By the court:

[1] The appellants appeal their convictions and sentences for trafficking in marijuana. Reverend Brother Michael Baldasaro, who was convicted of two counts of trafficking, was sentenced to imprisonment for two years. Reverend Brother Walter Tucker, who was convicted of three counts of trafficking, was sentenced to imprisonment for one year. Pursuant to s. 16(1) of the Controlled Drug and Substances Act, S.C. 1996, c. 19 (CDSA), the trial judge also ordered forfeiture of “offence-related property” consisting of $2,100 cash that police seized from Reverend Tucker, and the real property located at 544 Barton Street East, Hamilton, Ontario, which was held in the name of the trustees for the Assembly of the Church of the Universe. The Church of the Universe, which was founded by Reverend Tucker, professes marijuana to be sacramental.

[2] The appellants raised numerous grounds against conviction in their original and supplementary notices of appeal. In their oral argument, the appellants referred to four grounds.

[3] First, the appellants argued that Reverend Tucker was unable to participate fully at trial because he suffers from a hearing deficit. In our view, the record is clear that the trial judge did what he could to accommodate Reverend Tucker and we are not persuaded his hearing impairment hampered his defence.

[4] Second, the appellants challenge the constitutionality of the CDSA on the basis of freedom of religion. In light of prior jurisprudence, they indicate that they wish to argue this ground only before the Supreme Court of Canada. In addition, the Crown advises that the appellants abandoned their constitutional challenge during pre-trial motions and led no evidence by way of a factual background to support their argument. We do not give effect to this ground of appeal.

[5] Third, the appellants argue that the Crown was obliged to obtain a search warrant before coming onto their property to purchase the marijuana. However, the undercover officers were expressly invited into the premises for the purpose of purchasing marijuana and it is settled law that undercover drug buys do not constitute a “search” under section 8 of the Charter. Hence, there is no merit to this ground of appeal.

[6] Finally, the appellants allege ineffective assistance of Reverend Baldasaro’s trial counsel. We see no merit in this ground of appeal.

[7] We turn to consider the appellants’ sentence appeals. The convictions related to five separate purchases of marijuana by an undercover police officer, two of which occurred on the same day. All purchases were made at the Barton Street premises. Those premises consisted of the Church area on the first floor and the appellants’ living quarters on the second floor.

[8] In arriving at the sentences of two years for Reverend Baldasaro and one year for Reverend Tucker, the trial judge referred to evidence that police seized pursuant to a search warrant that was executed on the same day as the last sale. That evidence included 14 pounds of “shake” (marijuana plant stems and leaves); 7,000 clear baggies bearing a marijuana leaf symbol; a digital weigh scale; $2,100 in cash seized from Reverend Tucker, which included buy money provided by the undercover officer for the last two purchases of marijuana, and a bank deposit book showing a balance of between approximately $3,500 and $14,000 over the two-year period between 2002 and 2004.

[9] The trial judge also considered a statement that Reverend Tucker gave to the police when he became the victim of an attempted armed robbery on the Barton Street premises. In the statement, Reverend Tucker admitted “everyone knows we distribute marijuana” and “we don’t do big.” He explained, “[e]verybody knows it’s grams and half-grams.” The trial judge also referred to his statement, “I told [a judge] that if he wants high quality medical marijuana he’d have to come to me,” as reflecting an assumption on Reverend Tucker’s part that “he is immune from prosecution.”

[10] The trial judge concluded that the premises served as a “marijuana convenience store operated for profit … but disguised as a church,” with the hours of operation posted on a sign at the door. The trial judge stated that the paraphernalia obtained on execution of the search warrant “reinforced” his conclusion that the appellants were carrying on a commercial operation.

[11] We agree with the trial judge that these were relevant considerations. We are also of the view that it was open to the trial judge to impose a term of imprisonment on the appellants.

[12] However, in our respectful view, the trial judge erred in imposing sentences that were manifestly excessive having regard to the very small amounts of marijuana at issue, which totalled less than ten grams, for which the appellants received about $70. Even taking into account the larger context of the transactions, including the appellants’ stated intention to continue distribution of marijuana as “sacrament,” the authorities provided to this court by the Crown do not support the length of the sentences imposed. Of the five cases cited by the Crown in its factum, none imposed terms of imprisonment of more than six months.

[13] In our view, the one-year sentence imposed on Reverend Tucker did not adequately reflect the circumstances of the offences and Reverend Tucker’s circumstances, including his age of 75 years and his largely unrelated and very dated (more than 30-year-old) criminal record. We would reduce Reverend Tucker’s sentence to imprisonment for three months.

[14] While Reverend Baldasaro’s prior convictions were also dated, (more than 10 years old), he had 12 prior convictions for trafficking, including a two-year sentence. In light of this related record, and in spite of his largely positive pre-sentence report, we accept that it was open to the trial judge to impose a sentence on the 58-year-old Reverend Baldasaro that was longer than the sentence he imposed on Reverend Tucker. We would reduce Reverend Baldasaro’s sentence to imprisonment for five months.

[15] While we accept that it was appropriate for the trial judge to make a forfeiture order of the Barton Street property, we are respectfully of the view that only an order for partial forfeiture is justified in this case. In so concluding, we note that no submission was made to the trial judge for partial forfeiture and that the trial judge did not have the benefit of recent decisions regarding partial forfeiture from the Supreme Court of Canada. In particular, Abella J. explained at para. 59 of R. v. Craig, 2009 SCC 23, 244 C.C.C. (3d) 1, that “judges have the discretion to order no forfeiture, partial forfeiture or full forfeiture for offence-related real property.” She further noted that forfeiture is also available for property held in the name of a third party. At para. 17, she quoted the explanation provided by Wittmann J.A. in R. v. Gisby, 2000 ABCA 261, 148 C.C.C. (3d) 549 (Alta. C.A.) at para. 21, where he stated that “it is often the case that offence-related property is not owned by the offender, but by a culpable third-party with some sort of relationship to him or her, and continues to be used for illicit purposes by other persons.”

[16] In this case, the marijuana sales, as found by the trial judge, were part of a commercial venture. That venture was carried on from the first floor of the Barton Street premises. There was no evidence that trafficking activity occurred in the living quarters of the appellants on the second floor. We also observe that this was not a situation meriting full forfeiture. An example of such a situation is described at para. 59 of Craig as one “of a fortified property purchased for criminal purposes and solely dedicated to the commercial production and distribution of illegal substances, perhaps with a connection to organized crime.” There was no evidence that the upstairs portion of the premises was operated for the purpose of growing or distributing marijuana. Indeed, the evidence indicated that the entire second floor was used as the appellants’ personal residence. This situation, in our view, lent itself to a partial order.

[17] The Crown advises that the mortgagee, who is now in possession of the property, estimates that the owner has equity of approximately $22,000. In the circumstances, a forfeiture order would be appropriate for half the value of the equity in the property after the usual deductions. We so order.

[18] In the result, the appeals against conviction are dismissed. The appeals against sentence are allowed and the sentences imposed are set aside. In substitution, Reverend Tucker is sentenced to three months imprisonment and Reverend Baldasaro to five months imprisonment. These sentences are in addition to time spent in pre-trial custody, which we understand was at most a few days.

[19] The forfeiture order for 544 Barton Street East, Hamilton, Ontario is set aside. Instead, a forfeiture order will issue for half the equity of that property to which the appellants would otherwise be entitled on its sale.

RELEASED: September 23, 2009

“MM” “M. Moldaver J.A.”

“K. Feldman J.A.”

“S.E. Lang J.A.”