Court of Appeal for Ontario

Date: 2017-11-22 Docket: C62666

Judges: Rouleau, Pepall and Miller JJ.A.

Between

Her Majesty the Queen Respondent

and

Sam Pum Appellant

Counsel

Douglas Gosbee, for the appellant

Victoria Rivers, for the respondent

Heard and released orally: November 17, 2017

On appeal from: the convictions entered on March 16, 2016 by Justice Malcolm G. McLeod of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant's convictions under ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act arose from a marijuana grow-op that was discovered in his rental apartment unit. He appeals his convictions on the basis that the trial judge is said to have misapprehended the evidence and returned an unreasonable verdict.

[2] The trial judge convicted the appellant on the basis of the following findings establishing his control of the unit and knowledge of the grow-op:

• the appellant had been the tenant of unit 1905 for over four years;
• there was no evidence that anyone else occupied or subleased the unit;
• there was only one key fob assigned to the unit, and there was no evidence that anyone else was using it;
• the appellant was not on the July list for eviction, indicating that rent had been paid at least up until May 2014;
• expert evidence provided that this was a three-stage operation, and the latest stage marijuana plants were approximately three months old;
• the presence of dried marijuana suggested that an earlier crop might have been grown in the unit;
• the grow-op was sophisticated and extensive, occupying 2 bedrooms and the entire unit smelled of marijuana;
• the living room had been converted into a bedroom, appeared lived in, and the appellant's personal identifying documents and work related documents were found there;
• the most recent of the documents, a pay stub, was dated April 10, 2014;
• although the apartment manager's evidence could not support a finding that the appellant was observed at the apartment during the period of time in which the grow-op must have been in operation, the apartment manager had observed the appellant regularly between 2010 and early 2014, the appellant continued to be a leaseholder thereafter, and there is no evidence to suggest his use was interrupted or terminated.

[3] All of these findings were open to the trial judge on the evidence before him and there is no basis on which we would interfere. Significantly, the appellant chose not to testify or call any evidence that would provide any innocent explanation of how or when the unit ceased to be under his control. Based on these findings, on our view, the trial judge correctly determined that there was no other rational conclusion other than the appellant's guilt.

[4] The appeal is dismissed.

Paul Rouleau J.A.

S.E. Pepall J.A.

B.W. Miller J.A.