COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnson, 2016 ONCA 654

DATE: 20160902

DOCKET: C59776

Doherty, van Rensburg and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Johnson

Appellant

Daniel C. Santoro, for the appellant

Ghazala Zaman, for the respondent

Heard and orally released: August 18, 2016

On appeal from conviction entered by Justice D.T. Vyse of the Ontario Court of Justice on July 21, 2014.

ENDORSEMENT

[1] The appellant was convicted of unlawfully producing marijuana and the possession of marijuana for the purposes of trafficking. He was found by the police in a residence located at Thirty Road North in Beamsville, Ontario. The residence was being used as a marijuana grow-op. When he was arrested, the appellant immediately told the police that his boss had a licence to produce marijuana at that residence. He was there to meet a water truck, presumably to water the plants. In fact, although his boss had a licence for another nearby location, he did not have a licence to grow marijuana at Thirty Road North.

[2] The appellant did not testify. He did, however, rely on his statements to the police to support a defence at trial that he honestly believed that his boss had a licence making the grow-op a lawful operation.

[3] On appeal, Crown counsel submits that there were two distinct bases upon which the appellant could be convicted of the two charges. First, on the basis that he assisted his boss in cultivating the marijuana. According to the Crown, the appellant’s statement that he believed his boss had a licence to grow marijuana at the residence could not, standing alone, give “an air of reality” to the claim of an honest belief that the grow-op was lawful. Second, the Crown submits that as the appellant was involved in the cultivation of the marijuana, he had to be personally licensed under the applicable legislation and was, by his own admission, not personally licensed.

[4] Whatever the merits of the second basis put forward by the Crown on appeal, it was not the basis upon which the case was decided at trial. The trial judge convicted on the basis that the appellant aided and abetted his boss in the cultivation of the marijuana. The trial judge focused not on whether the appellant was licensed to cultivate marijuana, but rather on his belief that his boss was licensed to cultivate marijuana at the residence.

[5] We are satisfied that the trial judge erred in law in holding that the defence had an onus to establish the honest belief defence. The trial judge found that the defence could not be made out by the appellant unless he had seen a licence. In our view, the trial judge was wrong to place any onus on the appellant and she was wrong to hold that the defence could only be made out by evidence that the appellant had seen a licence. The Crown was required to prove beyond a reasonable doubt that the appellant knew his boss did not have a licence. This was an essential finding before the appellant could be found liable as an aider and abetter. The trial judge was obliged to consider the appellant’s statement to the police just as he was obliged to consider the other evidence, including the evidence that his boss had a licence to grow at another residence and had applied for a licence at the Thirty Road North residence.

[6] In our view, on a consideration of the totality of the evidence viewed through the lens of the Crown’s burden of proof, the trial judge may or may not have rejected the honest belief defence. We cannot say. There must be a new trial on both charges.

[7] The appeal is allowed, the convictions are quashed and a new trial is ordered.

“Doherty J.A.”

“K.M. van Rensburg J.A.”

“L.B. Roberts J.A.”