Court Information

Ontario Court of Justice (Toronto Region)

Between: Her Majesty the Queen -and- Thomas Macsanszky

Reasons for Judgment

Justice: W. P. Bassel Date: April 23, 2012

Appearances

For the Crown: Ms. S. Virk For the Defence: Mr. J. Christie

Charges and Background

Mr. Macsanszky has entered pleas of not guilty to 4 charges alleged to have occurred on December 3, 2009:

1. Production of Marijuana
2. Possession for the purpose of trafficking of marijuana (Count 1)
3. Possession for the purpose of trafficking of marijuana (Count 2)
4. Theft of electricity

All charges relate to activities at the premises located at 20 Boylen Street, Toronto.

The Crown called 5 police witnesses. The defence called 3 witnesses: a Toronto police officer, a Toronto Hydro employee, and a tenant who had previously resided at the subject premises.

The Main Issue

The essence of the Crown case rests on circumstantial evidence. The defendant did not testify, but defence evidence was called. The case rises or falls on what inferences can or cannot be drawn from the facts in the circumstances.

Brief Background to This Case

A number of issues have been conceded by the defence and are not in dispute:

• The activities being carried on at 20 Boylen Street constituted a marijuana grow operation
• The marijuana discovered by police was possessed for the purpose of trafficking
• The evidence of the Toronto Hydro employee regarding theft of electricity at the premises is uncontroverted

The key issue is whether the Crown has proven to the requisite degree that the accused had knowledge and control of the premises and was in possession of the operation as a principal participant or party.

Evidence of Electricity Theft

Ms. Debbie Kupchko, an employee of Toronto Hydro, testified that certain hydro usage and other indicia led her to conclude that electricity was being stolen from 20 Boylen starting from February 3, 2008. As a result of steps taken by her, the Toronto Police were contacted, a search warrant was obtained, and it was executed on December 3, 2009 at that address.

Evidence of the Grow Operation

The Crown called 5 police witnesses. Based on the evidence of the 4 officers who testified and who had entered the premises, and the evidence of Sgt. Babiar who was qualified as an expert in grow operation undertakings, the following was established:

The whole house from the basement and up was a fully functioning and active marijuana grow operation, with plants at different heights and stages of growth as well as drying contraband. Some 17,440 grams of marijuana was identified.

Specific findings:

• From 2 grow rooms in the basement: many plants growing
• Throughout the basement and elsewhere: paraphernalia including programmed timer boards, ballasts, fans, carbon filter system to deal with smell, a scale, and high intensity lights
• From the refrigerator: approximately 300 clones of marijuana clippings
• In the hallway: marijuana
• In the loft upstairs: contraband hanging to dry on hangers, with dark coverings on windows

The Critical Issue: Possession and Control

It is the second stage which is a very live issue: Has the Crown proven beyond a reasonable doubt that the accused was in possession of, either jointly or by constructive possession, the undertaking being conducted at this home?

This case is based on circumstantial evidence. No one was in the residence when the search warrant was executed. A few days after the warrant was executed, the accused, who was the registered owner of the property, surrendered to the police.

Documents Seized

When the police searched the premises, the house was in a considerable state of disarray. In the kitchen area, the police seized a number of documents relating to the accused, which can be broken down into 2 categories:

First group (older documents):

• TD Bank statement and envelope paper dated February 1990, addressed to the accused at 6171 Bathurst
• TD undated document regarding a Visa card with a PIN number, addressed to accused at 6171 Bathurst
• Undated postcard from Hungary to the accused at 6171 Bathurst

Second group (current documents at 20 Boylen):

• Toronto Hydro bill dated July 19, 2009 in his name and addressed to him at 20 Boylen
• Letter dated November 19, 2009 addressed to accused at 20 Boylen from RDA Insurance company relating to the subject premises
• Letter dated November 24, 2009 from RDA Insurance to the accused at 20 Boylen
• Enbridge gas bill arrears Collections Notice dated October 13, 2009 addressed to the accused at 20 Boylen relating to service at that address
• City of Toronto water bill in the name of the accused, addressed to him there, being a credit bill notice dated June 29, 2009, relating to service at 20 Boylen

There were many other papers and documents in and around the house. The police focus was with regard to materials linking the accused to the premises. There were many other papers and writings throughout the house, some of which the police did not examine. No effort was made by the police to take any fingerprints or DNA from items and objects which were inside the premises.

Evidence Regarding Hashim Curtis

The police were aware at an early point of a connection to that address of one Hashim Curtis. A police officer had investigated Curtis in April 2008, and Curtis had indicated that 20 Boylen was his address at that time. The officer drove Curtis to 20 Boylen in April 2008 where Curtis went into the house to retrieve a computer. That officer did not enter the premises.

During the execution of the search warrant, a DVD was taken of the interior and its contents. In addition to the drug production apparatus and contraband, there were also some evidence of a musical box and some other items that the witness Weinstein purported to identify as belonging to Curtis.

Land Title and Ownership

Certified copies of Land Titles ownership and mortgage documents showed the accused as the owner and mortgagor of the premises from January 2008, with 20 Boylen designated as the address for service relating to the documents and property.

Defence Evidence: Ms. Sharon Weinstein

The defence called Ms. Sharon Weinstein as a witness. She advised that she had been a tenant of 20 Boylen from February to July 2008. She identified a Collection Company collection letter addressed to her at 20 Boylen and stated that Curtis was also there while she was there, and that she paid rent to him.

Her testimony:

• She knew the accused for a number of years but never saw him at the house
• While she lived there for those months, she never saw a grow operation in the house
• She was not permitted to go into the basement
• There were no dark window coverings during her tenancy
• She only smelled burnt marijuana from what had been smoked by Curtis
• She recognized a music case with a sticker that she said belonged to Curtis
• She used the kitchen area while living there
• She did not know who lived there in December 2009
• Her last connection to the house or Curtis was in July 2008

The Positions of Counsel

Crown's Position

It is the Crown's position that Mr. Macsanszky was criminally liable for the offences being committed in the premises, and that there is evidence to the requisite degree establishing possession, knowledge and control by him. On proven facts, rational and non-speculative inferences may and should be drawn linking the accused to these illegal activities. The only reasonable inference to be drawn was that Macsanszky had control of the premises either by joint or constructive possession.

Defence Position

For the defence, it is submitted that:

• The police exhibited tunnel vision in having a focus and mindset only towards the accused
• Their searches and investigations were not only inadequate, but they blocked out any consideration of an alternate suspect possibility, especially in view of their knowledge of Curtis having noted his address at 20 Boylen
• The police deliberately disregarded other potentially relevant evidence because of their mindset on Macsanszky
• The Weinstein evidence should be accepted, as there were items of value connected to Curtis which she identified, and they were in the house when the police entered it, thus supporting a conclusion that someone other than the accused had direct personal connection to the premises
• The discovery of the papers seized by the police in the accused's name, some of which were quite dated and some addressed to him at another address, and others more current, are consistent at their highest as establishing the accused as owner (which is not disputed) and that the existence of those documents cannot and should not be construed as proving the accused's presence in the house

Analysis

Standard of Proof

The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence. This standard of proof has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40.

The onus of proof always remains with the Crown and never shifts to the accused. There is no onus on Mr. Macsanszky.

Circumstantial Evidence

This case involves circumstantial evidence, and the determination of what are primary or proven facts, and then to determine what rational non-speculative inferences flow from them. See McLetchie 2100 O.J. 1244, Para 58.

Great care must be taken to separate the wheat from the chaff—in other words, to separate permissible inferences from unfounded, possibly suspicious, but nonetheless impermissible speculation.

It is also important to note that ownership does not amount to possession and control.

The Emes Decision

Reference was made to a decision by Hill J., in R. v. Emes, affirmed by the Ontario Court of Appeal at, 2001 O.J. 2469, which has bearing on the issue of the probative value of personal documents seized where a grow operation is being conducted.

Ownership and Possession

It is clear that the accused was the owner at the relevant time, and the essential title documents and mortgage papers showed 20 Boylen as his address for service of any notices concerning his property.

It is also clear from the evidence of Sgt. Babiar and Det. Kovacs, the reasoning in R. v. Arnold, and common sense, that a grow operation is a continuing process. By the very nature of plants growing and requiring water and attention, a person or persons would have to be in attendance at the home at least every few days if not more often.

It is quite clear on the evidence that the house was more or less completely full as a grow operation at various stages of growth, and the presence of discarded beer cans, wrappers, juice in the refrigerator, and a sofa are indicia of attendances by someone to the property.

Assessment of Defence Evidence

With regard to the evidence of Ms. Weinstein, the court finds that it is of very little assistance to the issue at hand. While she purported to identify a music box belonging to Curtis when she saw the DVD, her evidence from looking at a YouTube showing certain items as possibly belonging to Curtis was not of great assistance.

Key findings regarding Weinstein's evidence:

• Her connection to both the house and Curtis were long gone—some 18 months by the time of the search
• She said she never saw the accused at the house
• She never saw a grow operation during the 5 or 6 months she was living there in 2008, something that was very evident throughout the house on December 3, 2009
• She was never allowed in the basement
• She never came back to 20 Boylen after July 2008
• She had no further contact with Curtis
• She had no idea as to who was living there or attending there on the alleged offence date
• The fact of her paying rent to Curtis during that period does not throw any light on the existence of any arrangement with the accused

Similarly, the evidence of P.C. Wilson from April 2008 has no bearing on the state of events some 19 months later.

Rejection of Alternate Suspect Theory

The defence submission that there existed some form of tenancy relationship between Curtis and the accused, with Macsanszky as an absentee slum landlord, cannot be accepted. Weinstein never saw the accused at that house, nor did she know what, if any, rent arrangements Curtis had with the accused.

No evidence whatever was called—Curtis or otherwise—on this point. It is sheer speculation, not founded on even a shred of evidence or possible inference, that this situation existed, or that Curtis was paying any of the utility bills.

The only evidence present were relatively current gas and hydro bills addressed to and in the name of the accused at 20 Boylen. The hydro account was opened in the name of the accused with Toronto Hydro from the outset of his ownership.

Probative Value of Personal Documents

With regard to the documents seized by the police relating to the accused, some were dated and some showed a mailing address to the accused elsewhere. However, they were located at 20 Boylen.

Of more note, however, was the fact that important, currently dated papers—a fire insurance renewal notice dated November 19, 2009 (just a few weeks before these charges), current utility notices, and insurance information—were not only at the premises, addressed to and in the name of the accused, but they were also found in and near the kitchen counter area.

The court adopts the reasoning from R. v. Emes as follows:

"The documents are effectively relevant for the fact of their existence as real or tangible evidence. The probative value relates to the circumstantial inference drawing apart from the truth of the contents of the seized documents….. that personal papers are as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms……..insurance papers and the like are located in a residential premises, it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense."

This reasoning is adopted and applied to this case.

Cumulative Effect of Evidence

Upon considering the cumulative effect of the evidence adduced, including those documents connected to the accused at the premises, in the accused's name, describing the subject matter of transactions and business regarding that house, they have strong probative value.

In the view of the court, the only reasonable and permissible inference to be made is that the accused did have the requisite knowledge of and measure of control and occupancy to the premises and contraband operation activities at the relevant time.

It is also of note that the defendant had signified that any land registry or mortgage notices regarding his title and property should be sent to 20 Boylen.

Items Belonging to Curtis

The submission regarding the police ignoring the alternate suspect issue concerning Curtis, the fact that some items were at the premises, and that he would not likely abandon them, has been considered. However, the fact that these items were seen there does not exclude or displace the only reasonable inference to be drawn—namely, that the accused was in possession of and did exercise some measure of control over the premises.

Those items that were seized by the police are inexorably linked to the accused and to no one else.

Application of Emes Reasoning

The reasoning from Hill J., in R. v. Emes is adopted and repeated as applicable: personal papers are, as a matter of common sense and logic, generally maintained in a location to which a person has access and control.

In the circumstances of this case, the view that those current and important papers linked to the accused were either stolen or stored there does not fit with the factual probabilities existent here.

Similar to the Emes case, in the case at bar, the police evidence including the DVD photographs of these premises point to the fact that this residence at the relevant time was totally committed to a grow operation and was not being occupied for daily living or habitation. The refrigerator was full of bagged clones. There is no evidence to suggest that anyone other than Mr. Macsanszky had control of the premises at the relevant time.

The Accused's Silence

Applying the reasoning from R. v. Noble, while the court is very aware that silence cannot shore up or bolster a weak Crown case, one can conclude from the failure of the defendant to testify that there is no unspoken, innocent explanation about which the trier of fact must speculate.

If the totality of the evidence leads to guilt beyond a reasonable doubt, the accused's silence simply fails to prove any basis to conclude otherwise.

Conclusion on Knowledge and Control

The cumulative effect of the circumstantial evidence as it relates to the issue of knowledge and control drives the only reasonable conclusion that the defendant was, and the court finds as a fact that the accused was in joint or constructive possession of, and did have knowledge and control of the premises and the contraband operation and activities taking place therein on the date in question.

Judgment

The court is satisfied that the Crown has proven the essential ingredients of these offences beyond a reasonable doubt.

There will be findings of guilt on all charges.

Dated at Toronto this 23rd day of April 2012