Court of Appeal for Ontario

Date: 2023-12-29 Docket: C69043

Judges: Doherty, Trotter and Sossin JJ.A.

Between:

Her Majesty the Queen Respondent

and

Craig Ferguson Appellant

Counsel: Leo Adler and Kevin Gray, for the appellant Jonathan Geiger, for the respondent

Heard: November 23, 2023

On appeal from the convictions entered by Justice Fergus C. ODonnell of the Ontario Court of Justice on January 17, 2020, and from the sentence imposed on February 1, 2021.

Reasons for Decision

[1] The appellant was charged with two counts of producing marijuana without authorization (Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 7(1)) (the “CDSA”), and two counts of possession of marijuana for the purpose of trafficking (s. 5(2)). He was sentenced to concurrent conditional sentences of two years less a day, an 18-month probation order, a $100,001 fine, and a forfeiture order.

[2] At the conclusion of the hearing of the appeal, the appeal from conviction was dismissed, with reasons to follow; judgment was reserved on the sentence appeal. The following reasons explain why the conviction appeal was dismissed, and why we would allow the appeal from sentence.

Factual Background

[3] In 2013, the appellant purchased a farm from Pete Muileboom, who had previously grown tomatoes on the property. It was the appellant’s intention to develop the land. In the meantime, he started a marijuana grow operation, with the stated intention to do so legally.

[4] After purchasing the property, the appellant allowed Mr. Muileboom and his family to continue to live on the property rent-free. The appellant created a company, Muileboom Organics, from which he paid Mr. Muileboom a modest salary to grow marijuana on the property; along with other labourers, Mr. Muileboom grew and harvested marijuana plants. There were initially four personal production licences that authorized the production of marijuana on the property, but one expired early on. None of the licences were in the name of Mr. Muileboom, nor was he ever named as a designated grower under the CDSA regulations. The appellant eventually obtained his own personal production licence.

[5] On September 20, 2016, the police were called to the property after armed men robbed the greenhouse in the middle of the night. The robbers fled the scene when the police arrived. They did not have time to steal very much marijuana. At that time, the personal production licences associated with the property allowed the combined production of 513 plants. However, the greenhouse contained 3,390 plants. The police seized the plants and warned Mr. Muileboom about the illegality of the operation. They did not lay charges at that time.

[6] The operation soon started up again. In 2017, the police learned that the appellant had obtained his own personal production licence. This licence, in addition to other valid licences relating to the property, permitted the production of 488 plants. In March of 2017, the police attended at the property to speak to Mr. Muileboom. They discovered 2,093 plants, which were seized pursuant to a warrant. Mr. Muileboom was charged with producing and possessing marijuana for the purpose of trafficking in relation to his activities in 2017. The appellant’s charges related to the seizures in 2016 and 2017.

[7] Mr. Muileboom entered a plea of guilty and was called as a witness by the Crown. The trial judge also considered an Agreed Statement of Facts, the evidence of two police officers, and the appellant’s statement to the police following the execution of the search warrant in 2017. The appellant did not testify. In detailed reasons, the trial judge found the appellant guilty on all four counts.

The Conviction Appeal

[8] The appellant advances a number of grounds of appeal. Some were addressed in oral argument; the appellant relied on his written submissions for the others. For convenience, some of the grounds of appeal are grouped together in these reasons.

[9] Some of the appellant’s submissions relate to the fault requirements of the offences he was charged with committing. Others relate to the trial judge’s findings. We observe that the case against the appellant was straightforward and formidable. Both offences – production of marijuana without authorization and possession of marijuana for the purpose of trafficking – rested on the same evidentiary foundation.

(1) Incorrect assessment of the mens rea for the offences

[10] The appellant submits that the trial judge erred in his assessment of the mens rea for the production counts by failing to sufficiently specify the appellant’s mode of participation under s. 21(1) of the Criminal Code, R.S.C. 1985, c. C-46. We disagree and would not give effect to this submission. The trial judge’s reasons make it clear that he found that the grow operation was “largely under the direction of” the appellant. In terms of the appellant’s role in the production of marijuana, the trial judge made the following findings: “Mr. Ferguson was not a mere landlord. … Mr. Ferguson is definitely caught by s. 21(1)(b) (“for the purpose of…”) and s. 21(1)(c) of the Criminal Code even if I were to accept that he is not caught by s. 21(1)(a).” There was no need to delve into greater detail about the appellant’s various modes of participation in the offences.

[11] There was overwhelming evidence that the appellant, at the very least, assisted Mr. Muileboom in the grow operation. He visited the property frequently, as captured by security cameras. The appellant brought envelopes to pay the labourers who worked with Mr. Muileboom. Moreover, he purchased equipment for the grow operation. Party liability was easily established. The trial judge’s statement above was sufficient in the circumstances.

[12] The appellant also submits that the trial judge failed to address the appellant’s purported lack of knowledge that the number of plants being grown exceeded the limits of the production licences. We disagree. The trial judge addressed the issue head on. As he said in his reasons:

Given Mr. Ferguson’s connection to the property, his pattern of attendance, his degree of engagement with Mr. Muileboom and the extent of exceedance of the number of plants on each occasion relative to the number licensed, it beggars belief that Mr. Ferguson did not know of the exceedances or, at a minimum, was wilfully blind to it …I can accept that a person might be uncertain, without scrupulous attention, to whether there are 513 plants or 613 plants in his greenhouse, but to misconstrue the presence of six times more plants than 513 is remarkable. To the extent that any such mischaracterization was based on the meaning of a “plant”, the legal characterization of a plant is a question of law and ignorance of the law is not a justification. [Emphasis added.]

[13] Moreover, we note that the appellant’s convictions on the production counts did not stand or fall on overgrowing. The grow operation was illegal in any event because the personal production licences did not authorize Mr. Muileboom, not himself a license-holder, to grow any amount of marijuana at the farm.

[14] The appellant further submits that the trial judge erred in resting his conclusion on the possession for the purposes of trafficking counts on the security footage showing the appellant removing a garbage bag from the marijuana drying room and putting it in an SUV parked outside. The appellant submits that this was the only evidence of trafficking and it was insufficient to support a conviction.

[15] We do not accept this submission. This was not the only evidence relied upon by the trial judge when considering the possession for the purposes of trafficking counts. As he said before considering the garbage bag evidence:

Insofar as the purpose for which the marihuana was possessed, it simply beggars belief that the amounts involved, whether the amounts of final product referred to by Mr. Muileboom or the volume and size of the plants involved could conceivably be for the use of three people (i.e. the number of licensees on each occasion). There are some cases in which volume alone, even in the absence of expert evidence, makes out purpose and this is one such. Any other conclusion would be perverse.

[16] It is evident from this passage that the trial judge did not rely solely, or even primarily, on the garbage bag evidence to convict the appellant on the possession for the purposes of trafficking offences.

[17] The appellant also submits that the trial judge erred in not finding that the appellant was labouring under a mistake of fact that marijuana was being cultivated in amounts within the reach of the licences. In our view, this ground of appeal is answered by the trial judge’s finding that the appellant had actual knowledge that the number of plants far exceeded the permissible amounts.

[18] There is another strand to this submission. The appellant submits that he was unaware that he was in violation of the licenses’ limits due to a lack of knowledge about how many plants were in fact permitted. To the extent that he was confused, this gives rise to a mistake of law, not a mistake of fact: R. v. Fan, 2021 ONCA 674, 75 C.R. (7th) 1, at paras. 49 and 57. This is not a recognized defence in Canadian law: Criminal Code, s. 19.

[19] The appellant points out that, in his statement to the police, he said that he had been in touch with someone at Health Canada about the legality of his operation and that he may have been misled. The appellant submits that this was an officially induced error, and an exception to s. 19. There were brief references to this issue at trial. However, the trial judge found that these references were “never developed sufficiently either from an evidentiary perspective or in submissions” such that he need not address the issue on its merits. The appellant bore the onus to prove the elements of this defence on a balance of probabilities, and should not be permitted to litigate the issue for the first time on appeal: R. v. Forster, [1992] 1 S.C.R. 339, at pp. 346-47; Lévis (City) v. Tétreault; Lévis (City) v. 2629 ‑ 4470 Québec inc., [2006] 1 S.C.R. 420, at paras. 22-27. In any event, there is no air of reality to this submission.

[20] In conclusion, the trial judge did not err in dealing with the fault requirements for the offences the appellant faced.

(2) Errors in relation to credibility findings

[21] The appellant made a number of submissions concerning the trial judge’s credibility findings and about his overall appraisal of the evidence.

[22] The appellant submits that the trial judge erred by approaching the case as a credibility contest between the testimony of Mr. Muileboom on the one hand, and the appellant’s statement on other. Relatedly, he submits that the trial judge applied uneven scrutiny to Mr. Muileboom’s evidence and the appellant’s statement.

[23] We see no error in the trial judge’s approach to his task when it came to assessing credibility. Properly applying the burden of proof, it was clear that the trial judge did not treat the evidence as a mere credibility contest. Although the appellant did not testify, the trial judge applied the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 to the statement, which failed to raise a reasonable doubt.

[24] The appellant’s submission of uneven scrutiny is without merit. It is doubtful whether this claim is tenable in the circumstances of this case. The appellant did not testify. He was content to rely on his police statement, which was not tested by cross-examination. Assuming for the sake of argument that this submission is available to the appellant, it must still fail. The trial judge was critical of certain parts of the appellant’s statement, though not unfairly so. However, the trial judge was very critical of Mr. Muileboom’s evidence. There were many parts of his evidence that the trial judge rejected. However, other aspects of Mr. Muileboom’s evidence were corroborated by his contemporaneous journal entries, as well as security video footage of the appellant at the property. The trial judge made no palpable and overriding errors that would permit us to disturb his credibility findings, which are entitled to deference on appeal.

[25] Lastly, relying on R. v. Villaroman, [2016] 1 S.C.R. 1000, the appellant submits that the trial judge failed to consider reasonable alternatives inconsistent with guilt. This ground of appeal retreads the same submissions made in relation to the trial judge’s assessment of the fault elements, discussed above. There is no merit to this submission. The trial judge soundly rejected the appellant’s position that he was a passive, non-culpable landlord whose tenant, either alone or with others, grew plants over the permitted limit without his knowledge. There is no basis to upset this finding.

[26] The appeal against conviction is dismissed.

The Sentence Appeal

[27] The appellant submits that the sentence imposed was unfit.

[28] The Crown requested a custodial sentence of five years’ imprisonment, relying on the size of the grow operation and the appellant’s conduct in re-starting the operation after the police had warned against it in 2016. The appellant submitted that a conditional sentence or a suspended sentence would be fit in the circumstances.

[29] The sentence imposed is broken down in the following manner. With respect to the 2016 charges, the trial judge imposed a $100,000 fine on the production count, and a $1 fine for the possession for the purpose of trafficking count.

[30] With respect to the 2017 charges, the sentencing judge imposed two conditional sentences of two years less a day, to run concurrently. Both included a house arrest condition, with electronic monitoring, for the duration of the orders, as well as 240 hours of community service. This was followed by concurrent probation orders of 18 months, which also included a condition that the appellant complete another 240 hours of community service.

[31] With respect to the fine, the trial judge permitted a very lenient payment schedule of $500/month. However, he included a condition that would trigger the obligation to pay the fine in full. This was contingent on the appellant receiving funds from the sale of the farm property that was forfeited to the Crown. It was agreed that the Crown would retain 55% of the proceeds, with the remaining 45% to be returned to the appellant. The trial judge ordered that, when the appellant came into this money, he must pay off the outstanding amount of the fine within 30 days. At the hearing, we were advised that the property has been sold and that the proceeds are being held in trust, pending the outcome of this appeal.

[32] The appellant submits that the trial judge erred in linking the forfeiture order to the fine in the way that he did. He submits that it ran afoul of the Supreme Court of Canada’s decision in R. v. Craig, [2009] 1 S.C.R. 762, which held that judges should not view forfeiture orders as an aspect of an interdependent global sentence. That is not what happened here. The trial judge had already signed the forfeiture order, on consent, months before the ultimate sentence was imposed. All aspects of the sentence imposed were determined independently of the forfeiture order. The trial judge did not determine the quantum of the fine based on the amount of the forfeiture order; he merely linked the payment of the fine in anticipation of the funds that the appellant was expected to receive. This approach ensured that the appellant would have the ability to pay the fine; it also ensured that the fine would be paid in a reasonable period of time.

[33] More generally, the trial judge was right to treat the offences as serious. General and specific deterrence are important sentencing principles in this context, where the offenders are driven by financial gain: R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 161. However, the appellant’s financial gain from his activities was negligible at best. He has no prior criminal record.

[34] An appellate court may intervene to vary a sentence only where the sentence is demonstrably unfit or where there has been an error in principle, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor that impacted the sentence: R. v. Lacasse, [2015] 3 S.C.R. 1089, at paras. 11 and 41-44.

[35] In our view, when considered against the broad range of sanctions imposed by the trial judge – a fine, forfeiture, conditional sentences, and probation – the inclusion of the electronic monitoring and house arrest for the duration of the conditional sentence orders resulted in a sentence that was demonstrably unfit. The appellant was 69 years old at the time of sentencing and still working, at a low-paying job. Further, as the trial judge recognized, the appellant had made some efforts to operate legally, evidenced by a proposal for licensed users, a plan to obtain a producer permit for marijuana, and two city council meetings on the subject of the proposed operation. These circumstances reduced the appellant’s moral blameworthiness. We accordingly amend the house arrest conditions to run for just the first twelve months of the concurrent conditional sentences. Given that the appellant’s conditional sentences were suspended by order of this court on February 22, 2021, three weeks after sentence was imposed, the house arrest condition will continue for 11 months and one week from the release of these reasons. We delete the electronic monitoring conditions in both conditional sentence orders.

[36] Moreover, it is unclear to us why the trial judge thought that a probation order was necessary in the circumstances, especially given the appellant’s age and lack of a previous criminal record. A probation order is imposed for the purpose of “protecting society and for facilitating the offender’s successful reintegration into the community”: Criminal Code, s. 732.1(3)(h). In this case, it would appear that probation was imposed for punitive, not rehabilitative or protective purposes, as evidenced by the inclusion of an additional 240 hours of community service. The probation order is set aside.

Disposition

[37] The appeal from conviction is dismissed. Leave to appeal the sentence is granted and the appellant’s sentence appeal is allowed as set out in the previous two paragraphs. All other aspects of the sentence remain in force.

“Doherty J.A.”

“Gary Trotter J.A.”

“L. Sossin J.A.”