COURT FILE No.: Newmarket 4911-998-10-10910-02

DATE: 2012·01·25

Citation: R. v. Waterfield, 2012 ONCJ 218

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN DAVID WATERFIELD

Before Justice Richard Blouin

Heard on January 9, 10, 11 and 12, 2012

Reasons for Judgment released on January 25, 2012

K. Dickson and A. Adjei ............................................................................................. for the Crown

D. Lakie ........................................................................................ for the accused John Waterfield

BLOUIN J.:

Introduction

[1] The police executed a search warrant in the early morning hours of August 9, 2010, at a residence located on a large rural property at 22865 Kennedy Road, Georgina. Both Evan Lee and the defendant were arrested in the house at gunpoint by members of the Emergency Response Unit, masked and dressed in fatigues. A substantial marihuana grow operation was discovered in a basement below a functioning dog kennel and was dismantled. Both men were charged with Production of Marihuana, and Possession for the Purpose of Trafficking. Mr. Waterfield was also charged with Theft of Hydro.

[2] The police searched the house. In the bedroom occupied by Evan Lee they located marihuana and weigh scales. Mr. Waterfield’s bedroom (he would stay in the house a few times a month in the months before the arrest, and regularly during 2008 and part of 2009) contained no similar items. However, the police recovered from Waterfield a key chain which contained five keys (Exhibit 5). One of the keys opened the door to a storage/laundry room on the kennel level, and also opened the door to the basement below the kennel which housed the marihuana grow operation.

[3] In addition, police seized a Hydro bill (Exhibit 6) addressed to the defendant but for an address unrelated to this property, and a fuel bill (Exhibit 7) for amounts owed at this property in 2009 in the name of the defendant.

Evan Lee

[4] Evan Lee admitted that he was the primary operator of a marihuana grow operation that was assembled in the basement of the dog kennel, which had been constructed next to the house. The property was owned by a man named Jordon Jacobsen.

[5] In March of 2011, Mr. Lee entered a guilty plea and received a sentence of six months incarceration. The initial position of the Crown that the sentence should be within a range of one to two years was altered to account for Mr. Lee’s guilty plea, and a promise to cooperate by testifying against others. Mr. Lee had no prior criminal record.

[6] Mr. Lee described his relationship with Mr. Waterfield regarding the grow operation as “partners” and that Waterfield was present when the grow operation was assembled. Although he said that Waterfield would be in charge of the operation when he wasn’t around, and that Waterfield would repair items such as exhaust fans and reservoirs, he was quite vague as to the details of Waterfield’s role.

The Defendant

[7] Mr. Waterfield, 47, has a criminal record:

• June 11, 1985 - Dangerous Driving, Fail to Remain - $500 fine

• April 7, 1988 - Attempt to Obstruct Justice - 30 days + $1000 fine

• September 7, 2004 - Fail to Comply - suspended sentence

• probation

[8] Mr. Waterfield testified that he had nothing to do with the set up of the marihuana grow operation, and nothing to do with the installation of equipment and plants, and only discovered it in the early summer of 2009 when he entered the basement to investigate an odour. Mr. Waterfield’s connection to the property was that he was hired by the owner, Jordan Jacobsen, to oversee the construction of the dog kennel from February to October 2008. He was paid $1600 a week by Mr. Jacobsen.

[9] When Waterfield discovered the illegal use of the property, he left and told Jacobsen about it. He continued to return sporadically because he was hopeful he could recover $75,000 that he claimed was owed to him by Jacobson, he still had equipment stored on the property which he needed to access for work, and he needed a place to stay after arguments with his common law wife. He did not enter the kennel basement and continued to express his displeasure at the grow operation’s existence (Mr. Lee confirmed that displeasure). He explained that he did not call the police because he thought it would reduce his chances of recovering the money Jacobson owed him.

[10] Mr. Waterfield also explained some of the potentially incriminating evidence against him.

• As noted above, he explained why he was at 22865 Kennedy Road when the search warrant was executed.

• The keys the police found on him opened a number of doors and padlocks on the property. In fact, the same key that opened the door to the basement where the marihuana grow operation was operated, also opened a door on the main floor of the kennel.

• The fuel bill contained his name because he was present when the oil truck delivered. The oil was paid for by revenue from the kennel.

• The hydro bill in his name was for a completely different unrelated property (his mother’s).

Conclusion

[11] This case is one where the principles in R. v. W.D. must be employed. They are:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[12] While it is difficult for me to accept that Mr. Waterfield was completely unaware of the installation of a major marihuana grow operation on a rural property he frequented, and noting that he had a significant financial interest involved in the kennel’s success, I equally cannot conclude that he is fabricating his innocence. His evidence was detailed and chronologically well ordered. I found that it could reasonably be true. Any of the pieces of independent evidence that pointed to his guilt have valid alternative conclusions that lead to his innocence. No witnesses other than Mr. Lee testified to his involvement in the illegal activities. Other than Evan Lee, the Crown called only one witness that worked on the grow operation, Icer Espinet. Mr. Espinet did not implicate the defendant.

[13] Mr. Lee was not able to provide an accurate chronology, and his evidence lacked sufficient detail as to the involvement of the defendant. In addition, he had an incentive to provide incriminating evidence, at the very least, with respect to someone other than himself. With those concerns noted, I did not reject his evidence.

[14] Mr. Waterfield’s evidence provides me with a reasonable doubt. Even if it did not, I would have concluded reasonable doubt based on the evidence in its totality. Accordingly, the Crown case has not been proved beyond a reasonable doubt, and the defendant will be found not guilty.

Released: January 25, 2012

Signed: “Justice Richard Blouin”