COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Macsanszky, 2013 ONCA 672

DATE: 20131104

DOCKET: C56019

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Macsanszky

Appellant

Leo Adler, for the appellant

Howard Piafsky, for the respondent

Heard and released orally: October 31, 2013

On appeal from the conviction entered on April 23, 2012 and the sentence imposed on October 3, 2012 by Justice W.P. Bassel of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions of unlawfully producing and possession of marijuana for the purpose of trafficking and theft under $5,000 of electricity. He also seeks leave to appeal his sentence of nine months.

[2] On the conviction appeal, the appellant submits that the verdict was unreasonable and that the trial judge erred in drawing a negative inference from the appellant’s failure to testify.

[3] We disagree.

[4] This was a case based on circumstantial evidence. It was conceded at trial that the activities at the subject property constituted a marijuana grow-op and that the marijuana was possessed for the purpose of trafficking.

[5] Evidence of the appellant’s knowledge, possession and control of the operation could properly be inferred from the facts. They included:

• the appellant owned the subject property
• the title and mortgage documents described the appellant’s address for service as being the subject property
• as of December 3, 2009, when the search warrant was executed, the whole house was committed to a grow-op and was not being occupied for daily living or habitation
• plastic covered the windows of the property
• the grow-op required regular tending
• the evidence that Hashim Curtis lived at the property was limited to the February to July 2008 time frame
• the police seized eight documents addressed to the appellant, five of which were addressed to him at the subject property. The latter group of documents bore dates commencing June 29, 2009 through and including November 24, 2009 and related to such things as renewal of fire insurance, hydro and gas bills.

[6] In our view, the trial judge properly instructed himself on the applicable legal principles. The verdict reached by him was one that a trier of fact, acting judiciously, could reasonably render on the evidence before him.

[7] Secondly, the trial judge did not impermissibly use the appellant’s silence to find guilt. The trial judge had already concluded that the Crown had established the appellant’s guilt beyond a reasonable doubt and considered the appellant’s silence within the context described in R. v. Noble, [1997] S.C.J. No. 480. The silence assured the trial judge that he need not speculate about unspoken explanations.

[8] Lastly, the sentence was not demonstrably unfit or based on an error in principle. The offences were driven by greed; the operation was large and the value of the marijuana was significant. He considered rehabilitation but in the circumstances, it was reasonable for the trial judge to conclude that a conditional sentence would not achieve the sentencing objectives of deterrence and denunciation and that incarceration would signal society’s condemnation of the appellant’s conduct.

[9] In the result, the conviction appeal is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“S.E. Pepall J.A.”