Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Randall Scott Edwards and Eneida Pino

Before: Justice David M. Paciocco

Decision Released: June 27, 2012

Counsel

For the Crown: Ms. Melody Foerster

For the accused Randall Scott Edwards: Mr. B. Carroll

For the accused Eneida Pino: Mr. L. Russomanno

Decision

PACIOCCO, J.:

[1] Randall Scott Edwards and Eneida Pino (a.k.a Eneida Pino Perez) are charged with drug offences that allegedly occurred on 25 June 2010 at 21 St. Clair Ave. in the City of Ottawa. The charges arise from a police investigation of a suspected marijuana grow operation at that address. Mr. Edwards and Ms. Pino are not jointly charged on any counts, however. It is convenient to deal first with the charges against Ms. Pino.

ENEIDA PINO

[2] Eneida Pino is charged with possession of a Schedule II substance, cannabis marijuana, for the purpose of trafficking contrary to subsections 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act. Three issues arose for adjudication – (1) whether the substance relied upon by the Crown to prosecute this charge is proved to be marijuana, (2) whether Ms. Pino was in possession of that substance, and if so (3) whether that possession was for the purpose of trafficking.

[3] Ms. Pino was charged after the car she was driving, a Toyota bearing Ontario licence BCWJ145, was pulled over and searched incident to arrest shortly after she had been at 21 St. Clair Ave. Officers conducting the search found a box containing what appeared to be 50 "clone" marijuana plants. Shortly before her arrest Ms. Pino had exited 21 St. Clair Ave. and was observed by surveillance officers putting a box in the trunk. The officers who made this observation were armed with a search warrant and had the house under surveillance in anticipation of its impending execution. As Ms. Pino was pulling away Detective Constable Schoorl, the lead investigator, made the decision to have her arrested. The same vehicle, being operated by an unidentified woman broadly matching Ms. Pino's description, had been observed at 21 St. Clair 4 days earlier, on 21 June 2010. On that occasion a male agreed by all parties to have been Mr. Ken Capeling, a suspect in the grow operation investigation, was seen putting inside the car's trunk what officers concluded from a distance was a bale of soil or peat moss, a product commonly used in grow operations. They identified it from the nature of its packaging, its shape and its size.

Issue 1: Whether the Substance is Marijuana

[4] The question of whether the Crown has proved beyond a reasonable doubt that the 50 plants were in fact marijuana plants fell into issue when it became apparent during trial that the exhibit officer, Det. Hill, made a labelling error. This raised questions about which of the several packages of plant material sent for analysis contained cuttings from the plants seized from the trunk of the car. This became the theme of extensive cross-examination but was not pursued by Ms. Pino's counsel Mr. Russomanno during argument, probably because the labelling error proved to be moot. The error is moot because it is clear from the evidence that one of the packages sent for analysis did contain the marijuana from Ms. Pino's vehicle and all of the packages sent for analysis proved to contain marijuana. Uncertainty as to which particular package contained the subject substance does not matter. The substance seized from Ms. Pino's vehicle is still marijuana beyond any reasonable doubt. In addition, Detective Hill was able to provide testimony based on the appearance and characteristics of the substance in the disputed envelopes confirming that package D-10-74(3), analyzed to contain marijuana contained clippings from the plants from the Pino vehicle received by him from Det. Savory. I accept his testimony. I therefore find that the Crown has proved beyond a reasonable doubt that the 50 plants located in the trunk of Ms. Pino's vehicle were marijuana clone plants.

Issue 2: Whether Ms. Pino was in Possession

[5] The second issue, whether the Crown has proved beyond a reasonable doubt that Ms. Pino was in possession of this marijuana, occupied extensive attention during the trial and in closing argument. While it is not contested that Ms. Pino intended to exercise control over the box containing the marijuana – having carried it to her car before placing it in the trunk – the defence contends that the Crown has not proved beyond a reasonable doubt that Ms. Pino knew the box contained marijuana and intended to exercise control over the marijuana. Ms. Pino offered testimony on this point explaining that she had attended 21 St. Clair Ave. that day as a cleaner. She testified that she cleaned the upstairs of this small house and was about to clean the downstairs when she was sexually propositioned by a leering unknown male who was with Mr. Capeling and Mr. Edwards in the downstairs of the house. This male had been drinking and she became uncomfortable and decided to leave. As she was leaving she grabbed a box that had been placed on the stove near the side door. She thought it contained foodstuffs that Mr. Capeling told her that Mr. Edwards was giving to her that had belonged to Mr. Edwards' now deceased mother. Mr. Capeling, she said, had previously told her the box would be on the stove, hence her decision to take the box that was there. She put it in the car and proceeded to pick up a friend and was heading to the beach when the stop and search occurred.

Application of R. v. W.(D.) Framework

[6] This case involves an innocent explanation offered by the accused of the Crown's evidence rather than evidence contesting the credibility of the Crown evidence. The admonition from R. v. W.(D.) (1991), 3 C.R. (4th) 302 (S.C.C.) to avoid judging cases as credibility contests therefore does not apply. However the broader principles of R. v. W.(D.) certainly do. Accordingly if I believe Ms. Pino's innocent account of what happened then obviously I must acquit. Even if I am not convinced that her version is the truth I must ask myself whether it nonetheless leaves me in a reasonable doubt. This inquiry arises because it is possible for a judge, without affirmatively believing an account, to be left in reasonable doubt about whether that account is true. Even if I am not left in reasonable doubt by Ms. Pino's version of events this is still an inadequate basis for convicting. I must go on and ask myself whether, on the evidence I do accept, the Crown has proved beyond a reasonable doubt that all of the elements of possession for the purpose of trafficking are satisfied.

Credibility Assessment of Ms. Pino's Testimony

[7] After close analysis, I do not believe Ms. Pino's innocent explanation. Nor does her account raise a reasonable doubt in my mind. I have not arrived at this position because Ms. Pino's evidence was rambling, often unresponsive and, as conceded by the defence, inconsistent on secondary points. I appreciate that she testified with the assistance of interpreters, which prevented her testimony from appearing fluid and natural. I also recognized as Mr. Russomanno points out that even though he represents her he had difficulty getting responsive answers to a number of the questions he asked. I reject her testimony on these points instead, in part, because it is unrealistically opportunistic. She purported, for example, not to know the surname of Mr. Capeling even though she has known him for eight years and resided with him for at least a year. She also claimed that during her many visits to 21 St. Clair Ave she did not smell the overpowering pungent vegetal smell that struck all of the officers upon entering the premises. The odour she did admit to detecting she attempted to pass off as cigarette smoke. I also believe she minimized the nature of her relationship with Mr. Capeling in the years since they stopped cohabitating. She was trying to distance herself from what was going on at 21 St. Clair Ave.

[8] As troubling as this is, I am rejecting her evidence primarily because her account of what happened that day is incredible. Her claim that she was attending that day solely as an innocent house cleaner is ludicrous. It is believable that someone trusted by the operators of a resident grow operation might be paid to do cleaning jobs around the house. By contrast it is preposterous that grow operators would hire a regular cleaner who they intend to keep in the dark about their illicit activity as Ms. Pino claimed, and then give her the run of the house telling her only that there is no need to go downstairs where the grow operation was located. It would be especially preposterous for these grow operators, intent on keeping the cleaner in the dark of their activities, to leave a three inch deep collection of dried marijuana in plain view in a folded down bag on the floor of a room the cleaner was expected to clean as well as a garbage bag containing 40 clones on a rocking chair. All of this is fantastic enough without being asked to believe that these grow operators would be fastidious enough to pay this cleaner to come three days a week just to clean. Although Ms. Pino testified the frequency of her visits increased to assist with the mess left by construction she also testified that the construction had ended the month before. Finally the uncontested evidence of the condition of the premises puts a redundant nail in the cleaning visit coffin. The yard and outside of the premises, including the back porch are a mess as verified by photographs, not what one would expect from a clean obsessed grow-crew. The officers who attended to execute the search warrant gave uncontested evidence that the ground floor of the premises was unkempt and in disarray, with stacks of pizza boxes and beer cases on the floor, clutter around and papers piled in the living room. I appreciate that Ms. Pino testified that her cleaning of the downstairs was interrupted that day by an uninvited sexual advance but it is apparent from the description offered by the officers that the ground floor had not been recently cleaned, even though Ms. Pino offered a cleaning story as the explanation for observation of her car during surveillance four days earlier on 21 June 2010. To be clear, I don't absolutely reject that she may have done some cleaning at the premises. I am certain, however, that she was not the innocent cleaner with the regular hours she claims.

[9] The heart of her story, that she took the box of marijuana by mistake thinking it was dry good grocery items, is also unbelievable. Ms. Pino linked Mr. Capeling to the premises in a way that would be significant enough to necessitate his involvement in the grow operation. It was this same Mr. Capeling, she said, who told her that a box of groceries would be left for her on the stove the day a box containing 50 marijuana clones happened to be there instead. This account would require me to give some credit to the coincidence that something happened to defeat Mr. Capeling's stated intention to have a box of groceries for her on the stove while by tragic coincidence something else happened to cause someone to leave instead a box of marijuana containing 50 clones having a current street value of $500 and a potential value of substantially more if grown and harvested. This account requires me to give some credit to the possibility that whoever left the box out in the open like that did so even though a cleaning woman who they kept unaware of the grow operation was there. And this account requires me to believe that Ms. Pino would pick up a box of plants and carry it to the car mistaking its heft and balance for a box of dry good groceries. This cleaner/box switch account not only defies belief. It does nothing to leave any doubt about whether Ms. Pino had the requisite knowledge and intent to control the box of marijuana she put into the trunk of her car.

Knowledge of the Contents

[10] The remaining "W.D." question is whether the Crown has succeeded in proving beyond a reasonable doubt on the evidence that I do accept that Ms. Pino had knowledge of what was in the box she was controlling.

[11] I begin by noting that as a matter of law where knowledge of a fact is an element of an offence, the Crown is not required to present evidence establishing affirmatively that the accused had the requisite knowledge. This is because the state of a person's knowledge is often impossible to prove since it is known only to them. As a result the law has created a short cut for the Crown. In Sweet v. Parsley [1970] A.C. 132 at 164, Lord Diplock, in a passage endorsed by the Supreme Court of Canada in R. v. Sault Ste. Marie [1978] 2 S.C.R. 1295, explained:

"Woolmington's case did not decide anything so irrational as that the prosecution must call evidence to prove the absence of any mistaken belief by the accused in the existence of facts which, if true, would make the act innocent, any more than it decided that the prosecution must call evidence to prove the absence of any claim of right in a charge of larceny. The jury is entitled to presume that the accused acted with knowledge of the facts, unless there is some evidence to the contrary originating from the accused who alone can know on what belief he acted and on what ground the belief, if mistaken, was held."

This is not a reversal of the burden. If there is evidence suggesting a material mistake of fact, the issue of knowledge is on the table. If at the end of the case there remains a reasonable doubt about knowledge because of that evidence, the accused is entitled to be acquitted. This doctrine applies here. As explained by Justice Dickson (as he then was) in R. v. Pappajohn [1980] 2 S.C.R. 12 at para 40, this "mistake of fact" defence "avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence." This is the defence Ms. Pino attempted. She committed the actus reus of the offence of possession by exercising control over a box containing marijuana but claims that she had a flawed perception of what the box contained, believing she was carrying a box of groceries rather than a box of marijuana. As indicated, I have rejected this evidence and disbelieve it beyond a reasonable doubt. Since her defence of mistake of fact has been rebutted, no reasonable doubt remains and as a matter of law, her knowledge that she was carrying the marijuana is established.

[12] Even without the application of the law of mistake of fact, there is ample affirmative evidence here leading to the inference that Ms. Pino knew what she was exercising control over. Specifically, Ms. Pino acknowledged in her own testimony to being a frequent visitor to 21 St. Clair Ave. where the vegetal odour was overpowering. When she was present on 25 June 2010 no effort was made to hide the significant amount of dried marijuana on display near the table on the ground floor. I find that she knew that 21 St. Clair Ave. was a grow operation. Moreover, on 21 June 2010 a package was put in the trunk of her car by Mr. Capeling from inside the grow operation, containing soil or peat moss. I make the finding that it was Ms. Pino who received the soil or peat moss because it was her car, driven by someone who, although not positively identified at the time, bore a description I find to have been consistent with Ms. Pino. Although Ms. Pino did not give dates she admitted in her testimony to being there in the days before 25 June 2010, claiming she attended to clean. She of course denied ever receiving a package of soil or peat moss into her trunk but during cross-examination by Mr. Carroll admitted to a package being placed in her car by Mr. Capeling on a date she said she was unsure of. She said it contained a bedspread. I am satisfied from the description of the package placed into her trunk by Mr. Capeling on 21 June 2010 offered by the surveillance officers that it was not a bedspread, however packaged. It was peat moss or soil, a raw material used in growing plants, including marijuana. On that occasion Ms. Pino was therefore a party to the removal of items from the grow operation. It is obvious from this and her frequent welcomed presence that the occupants of the grow operation were not trying to keep her in the dark about what was going on. Nor is it sensible to believe they were trying to keep her in the dark on 25 June 2010 about what was in the valuable package she was permitted to walk away with. This network of factors leave me with no doubt that on 25 June 2010 when she removed a box of marijuana from the residence Ms. Pino knew full well what she was carrying. I therefore find beyond a reasonable doubt that Ms. Pino exercised intentional physical control over the box of marijuana clones with knowledge of what was inside. Ms. Pino had legal possession.

Issue 3: Whether Possession was for the Purpose of Trafficking

[13] The remaining question with respect to Ms. Pino is whether this possession was for the purpose of trafficking. The Crown led expert evidence about customary usage and the value of the marijuana clones. The expert witness also offered an opinion that Ms. Pino's possession was for the purpose of trafficking. Mr. Russomanno, on behalf of Ms. Pino, did a commendable job in cross-examining the expert witness and identifying areas where the expert testimony and report depended upon assumptions about such things as the plants being harvested or cultivated, and in demonstrating the heavy reliance by the expert on blogs and internet postings rather than controlled or academic studies to acquire expertise in trafficking and production methods.

[14] I begin by noting that "[s]cientific validity is not a condition precedent to the admissibility of expert opinion evidence" (R. v. Abbey [2009] O.J. No. 3524 at para. 109 (Ont.C.A.)) nor is it a prerequisite to crediting expert opinion evidence. Only expert evidence that by its nature purports to be scientific has to comply with the principles of science. Proof of the usual levels of consumption of users, the practices and protocols of drug trafficking, and the value of drugs is the stuff of the streets and not of laboratories. The proper question for such evidence is whether experience and research permit the expert to develop a specialized knowledge that is sufficiently reliable to justify placing before a trier of fact (R. v. Abbey [2009] O.J. No. 3524 at para. 117 (Ont.C.A.)) and the proper question when ultimately determining whether to rely on such evidence is whether I find it to be reliable. I find that it is. Detective Christopher Dobbs comes before this Court having made a specialized study of drug consumption and trafficking. He is an experienced drug officer. His qualification to testify was conceded. The foundational information provided by him was explained, and the while aspects of his testimony were challenged, the heart of the information – the street value of clones, the way clones are used, what from the plant is most useful for the purposes of immediate consumption, and the consumption patterns of users – was not assailed. These were the features of his testimony that formed the essential building blocks of the trafficking opinion relating to Ms. Pino. I therefore accept his opinion that she possessed the box of marijuana for the purposes of trafficking. Based on this opinion, if not common sense, it is unrealistic to think that Ms. Pino intended personally to consume the 50 clones as clones, or grow them for herself. I have no reasonable doubt about this.

Verdict on Ms. Pino

[15] I therefore find Ms. Pino guilty as charged with the offence of possession of a Schedule II substance, cannabis marijuana, for the purpose of trafficking contrary to subsections 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act.

RANDALL SCOTT EDWARDS

[16] Mr. Randall Scott Edwards stands charged with possession of a Schedule II substance, cannabis marijuana, for the purpose of trafficking contrary to subsections 5(2) and 5(3)(a) of the Controlled Drugs and Substances Act. He is also charged with unlawfully producing cannabis marijuana contrary to section 7(2)(b) of the same Act. He was acquitted of a charge of possession of proceeds of property derived from the indictable offence of cannabis possession at the end of the Crown's case after the Crown agreed with the defence submission that there was insufficient evidence to support that charge.

Background

[17] The charges against Mr. Edwards were laid after he was found inside 21 St. Clair Ave. when the search warrant was executed on 25 June 2010. Mr. Edwards, through his counsel, does not contest that marijuana was being produced for the purpose of trafficking at 21 St. Clair Ave. His defence is that the Crown has failed to prove beyond a reasonable doubt that Mr. Edwards was party to that enterprise – that there is insufficient evidence that either as a principal or aider or abettor he produced or possessed the marijuana that was found at 21 St. Clair Ave. There are two possible avenues to his conviction, either through evidence he participated actively in some way as a principal or aider or abettor in the grow operation business at 21 St. Clair Ave., or evidence that he was otherwise in possession of the marijuana that was being produced and utilized by that business.

Active Participation as Principal or Aider/Abettor

[18] The Crown has no evidence that Mr. Edwards engaged in any positive act related to the cultivation or trafficking enterprise. On its face, one piece of evidence, Exhibit 6, had the potential to link him as an active participant but given the problems I am about to describe its weight before me is too tenuous to use to establish that Mr. Edwards was actively involved in producing, trafficking or aiding or abetting in the production or trafficking of marijuana.

Analysis of Exhibit 6

[19] Exhibit 6 is a Western Union Quick Collect payment invoice purporting to contain a payment by a "Randy Edwards" to Ottawa Hydro relating to 21 St. Clair Ave. The account number designated on the wire, 85D4043000, matches the account number on a hydro bill for 21 St. Clair Ave. found in the residence. The "sender's address," 1289 Erindale, matches an address found on Exhibit 5 which is a Rogers' Invoice in the name of Randy Edwards. Exhibit 4, a badly dated employee identification card from 1985 bearing what appears to be a photograph of a youthful Mr. Randall Edwards – the man who pled before me – is in the name of Randy Edwards. On its face the Western Union Quick Collect payment document therefore links Mr. Edwards to the act of paying hydro for the grow operation premises. Although this document ostensibly shows that the payment would have been made on 24 February 2010 two months prior to the "on or about" charge date of 25 June 2010, given Mr. Edwards' presence on 25 June 2010 and the short period of time between the payment and the alleged date of what is obviously an ongoing enterprise the Quick Collect payment invoice would have been cogent circumstantial evidence of his direct involvement in the business, if I could give it any weight. The way in which this evidence was presented, however, denuded it of weight.

[20] Specifically, Exhibit 6 was produced by the exhibit officer Detective Doug Hill from an exhibit bag and entered on consent into evidence. Detective Hill had no evidence to give as to where it was found. The officer who conducted the search that produced other items found in the same exhibit bag, Detective Smith, testified before me to having seized the documents filed as exhibits 4, 5 and 9"A" and 9"B" from inside the residence but did not testify to finding this document. Indeed, Detective Smith, referring to the exhibits he mentioned, said that was the extent of the items he seized. No-one else supplied any information as to where the Exhibit 6 invoice came from. I simply have no basis to conclude that Exhibit 6 is an authentic document that I can rely upon as genuine.

[21] Although the Crown did not invite me to do so, I have considered whether the fact Mr. Carroll did not object to the admission of this document when it was made Exhibit 6 during the testimony of Detective Hill changes any of this. It does not. Real evidence, including documents, does not have to be proved to be authentic to be admitted. All that is required is that there must be a reasonable basis enabling the trier of fact ultimately to conclude it to be authentic. Consent to make the item an exhibit therefore acknowledges no more than that at the end of the case, a trier of fact could find the document to be authentic. It is not, however, an admission that the item is authentic and in the absence of any proof about its origin I cannot find exhibit 6 to be authentic. There is therefore no reliable evidence of any particular actions by Mr. Edwards or participation in or aiding or abetting the trafficking or production enterprises.

Possession of Marijuana

[22] As a result, this case depends on the Crown proving that Mr. Edwards possessed the marijuana that was being produced for the purpose of trafficking. They must link Mr. Edwards to 21 St. Clair Ave. in a way that would demonstrate, beyond a reasonable doubt, his knowledge and control over that marijuana. The control element requires proof both of the actus reus of control, coupled with the intention to exercise control.

Legal Principles: Knowledge and Control

[23] I want to emphasize that the law requires both knowledge and control before possession can be found. I want to emphasize this because of a Crown submission that came perilously close to urging that since it is rare for the police to enter into a marijuana "grow operation" and find someone engaged directly in growing activities, presence inside coupled with knowledge of the operation can support conviction. This is not the law. Knowledge and presence is not enough. Knowledge and control is required. It is not an offence of "possession" for someone to be present in a grow operation even with awareness of the nature of the place being visited, absent evidence of control. The classic case of R. v. Colvin and Gladue (1942), 78 C.C.C. 282 (B.C.C.A.) illustrates this. Colvin and Gladue were found to be visiting a premise where narcotics were present. A third man, the occupant, was actively smoking morphine when the police arrived. In the absence of proof of anything more than their presence, however, Colvin and Gladue were acquitted of possession. While they clearly had knowledge of the presence of the drug in the place they were attending there was no proof they exercised any control over the drug, either by actions directly related to the drug, proof of partnership, or by controlling the premises where it was found.

Knowledge Element

[24] I will begin with the knowledge element before examining whether Mr. Edwards has been proved to have the requisite actus reus and mens rea relating to control. On the knowledge issue, I have no doubt that Mr. Edwards had the necessary knowledge. He was well aware that 21 St. Clair Ave contained a marijuana grow operation.

[25] First, I accept the evidence of the police officers that the smell of vegetal marijuana was overwhelming. Given the amount of marijuana being grown in this small building this testimony comports with common sense. Mr. Carroll, on Mr. Edwards' behalf, has argued that the odour of marijuana is worthless in proving knowledge without proof that Mr. Edwards was familiar with the odour of marijuana at the time and could therefore recognize what he was smelling. To build this argument he artfully extracted agreement from every police officer with the inherently indisputable proposition that someone who does not know what marijuana smelled like would not recognize the overpowering pungent odour at 21 St. Clair Ave. to be from vegetal marijuana. As indisputable as it may be that one needs familiarity with an odour to recognize it, I reject this argument. If it was right the Crown would be prevented from relying on what the proved observations of an accused person betray about his knowledge of facts, unless armed with evidence about the subjective ability of the accused to recognize what he is observing. The law does not impose such an insurmountable burden. R. v. Bauer 2003 BCCA 138, [2003] B.C.J. No. 505 (B.C.C.A), R. v. Tran [2005] O.J. No. 607 (C.A.) and R. v. Wight [2008] B.C.J. No. 794 (B.C.C.A.) are all cases where inferences of knowledge from the smell of vegetal marijuana were made in the absence of proof about the particular capacity of the subject accused to recognize that odour.

[26] These and similar cases can be explained using the doctrines of wilful blindness and mistake of fact. If a person, having the means to investigate, experiences the strong suspicious odour of vegetal marijuana but then deliberately chooses not to investigate they are wilfully blind and wilful blindness is a complete substitute for knowledge, as a matter of law: R. v. Briscoe 2010 SCC 13, [2010] S.C.J. No. 13 at paras 21-23. Even where a person does not have the means to investigate and therefore cannot fairly be said to have deliberately failed to investigate thereby making wilful blindness theory unavailable, the doctrine of mistake of fact can be applied. As explained above, this doctrine operates in appropriate cases to infer subjective knowledge of the factual elements of offences, in the absence of evidence to the contrary. On the facts of this case I have no doubt that Mr. Edwards smelled the odour emanating from the grow operation. Given this, if he wants this Court to be left in doubt about whether he may have been honestly mistaken about what odour he was detecting, he should point to evidence on the record raising a doubt about this. No such evidence exists. I therefore find that the pungent overpowering smell of vegetal marijuana in this case is evidence that Mr. Edwards knew 21 St. Clair Ave. to be a grow operation.

[27] The overpowering pungent odour of vegetal marijuana is not the only evidence of Mr. Edwards' knowledge. Mr. Edwards was found on the ground floor of the house where he had been for at least four hours. In plain view on the ground floor where Mr. Edwards was present, a large folded down paper bag of dried marijuana was found near the dining table. No effort had been made to conceal it. There was also a garbage bag nearby containing cloned plants. While Mr. Edwards was present on 25 June 2010 two garbage bags of contents taken from the residence were loaded into separate vehicles. In addition, the box of marijuana clones was carried out by Ms. Pino. While the three garbage bags and box may have been closed, the fact remains that, at the very least, those who were in control of 21 St. Clair Ave. trusted Mr. Edwards enough to bring him into a residence putrid with marijuana odour, carry on their activities in his presence, and leave a prodigious amount of dried marijuana out in the open. All of this impels me to conclude that Mr. Edwards knew that 21 St. Clair Ave. was a grow operation. The two remaining charges against Mr. Edwards therefore depend on whether the Crown has proved his control and his intention to exercise control beyond a reasonable doubt.

Control Element

[28] First, the Crown relies on evidence of Mr. Edwards presence at the premises. As he was not observed arriving he was there for at least four hours on 25 June 2010, from at least 11:30 when the surveillance started until his discovery in the premises when the warrant was executed at 3:40 p.m. This case is not, however, like R. v. Tran [2005] O.J. No. 607 where time, presence and circumstance supported an inference of control. In that case the Crown produced evidence of Mr. Tran's presence for 37 minutes in an unoccupied home, coupled with expert opinion evidence that grow operations in unoccupied homes are often sustained by comparably brief visits to tend to the crop. No such expert evidence was presented in this case, and 21 St. Clair Ave was not an unoccupied residence. Mr. Edwards was present at all times with between one and three others in a residence that the evidence before me shows to have been lived in and where beer and pizza were habitually consumed. The nature of Mr. Edwards' occupancy is consistent with a visit.

[29] Had the Crown presented evidence that Mr. Edwards had an ongoing presence at 21 St. Clair Ave., an inference of involvement may have been appropriate. This Court did hear testimony that on two prior occasions, officers conducting surveillance identified vehicles belonging to Mr. Randall Edwards parked in the driveway at 21 St Clair Ave. for prolonged periods of time. On one of those occasions the testimony was that two vehicles belonging to him were parked there. If credited this evidence would have been significant in showing an ongoing relationship between Mr. Edwards and 21 St. Clair Ave., sufficient to support a reasonable inference of control. When vehicle registration evidence being relayed by Det. Schoorl was objected to by the defence as inadmissible hearsay, however, the Crown said "its for the purpose of grounds, it's not for the purpose of the truth of the content as to who the owners of the vehicle are." No effort was made by the Crown to prove the ownership of these vehicles with admissible evidence. Given the limits the Crown imposed on its own use of this evidence and its failure to produce certificates of registration, I must disregard the testimony about Mr. Edwards' vehicles. I am not free to draw any inferences I might otherwise have drawn from the ongoing presence of vehicles registered to him being at the residence.

[30] Nor were fingerprints taken, and no evidence was given before me of any clothing or toiletries linked to Mr. Edwards. The sole evidence of property linked to Mr. Edwards at the residence was the two documents containing the name Randy Edwards referred to above, the 20-odd year old employment card and a cable bill to "Randy Edwards" sent to a different address. On their face neither document contains information linking Mr. Edwards to 21 St. Clair Ave. Moreover, the circumstances in which these documents were found do little to link him to that premises. These documents were not found in folders or drawers or in a location where it can be inferred that occupants' documents might be kept. They were found instead in the same room where Mr. Edwards was located, in a pile of paper on a living room coffee table. That pile included old newspapers and could well have been destined for disposal. I have no evidence whether the "Randy Edwards" documents were buried underneath other papers or sitting on top. And these documents do not appear on their face to be the kind of important documents one would ordinarily want to preserve. They could, on the limited information I have before me, have been discarded by Mr. Edwards during his visit on 25 June 2010 onto a pile that appeared destined for disposal. In the circumstances of this case the discovery of these documents is of only guarded utility in connecting Mr. Edwards to the residence at 21 St. Clair Ave. Ultimately, this evidence, coupled with Mr. Edwards' presence on 25 June 2010, is not consistent only with Mr. Edwards having the kind of connection to the residence that would impel a finding that he had control over the grow operation marijuana. This evidence does not rule out beyond a reasonable doubt that Mr. Edwards was nothing more than a visitor.

Credibility of Ms. Pino's Evidence Regarding Mr. Edwards

[31] The case against Mr. Edwards therefore comes down to the testimony that Ms. Eneida Pino, who implicated Mr. Edwards when testifying in her own defence. She claimed in her evidence that she attended regularly at 21 St. Clair Ave., and Mr. Edwards was always there. She said she observed him sleeping at the residence, including in a bedroom on the ground floor and that on one occasion when he was ill he received visitors there. The question before me then is whether her evidence, in light of the other evidence I have accepted including Mr. Edwards' uncontested presence on 25 June 2010 and the discovery of two documents just described, supports a finding that he was complicit in the grow operation beyond a reasonable doubt.

[32] I have already rejected Ms. Pino's testimony about her role on 25 June 2010 as incredible. Mr. Carroll urges me that the only rational thing to do given that she lied about her role is to reject her evidence in its entirety. He argued that given the extent of her demonstrated dishonesty this is not one of those cases where part of her evidence can reasonably be accepted. I agree that Ms. Pino has proven herself to be a dangerous witness. She is not a credible source of information. Whether I can accept remnants of her evidence turns on whether it is rational to do so, always bearing in mind that it is dangerous to rely upon her for anything that is not manifestly true or that is not supported by independent evidence to a degree capable of restoring faith in the relevant aspects of her account (See R. v Khela 2009 SCC 4, [2009] S.C.J. No. 4 at para. 37; R. v. Smith 2009 SCC 5, [2009] 1 S.C.R. 146 at para. 14; R. v. Hurley [2010] S.C.J. No. 18; R. v. Bevan, [1993] 2 S.C.R. 599 at paras. 27-29 (S.C.C.)).

[33] Obviously, having rejected Ms. Pino's house-cleaner account, I reject all of her evidence relating to Mr. Edwards being the one to pay her for her services. What of the other evidence linking Mr. Edwards? Mr. Carroll argued this too should be rejected because Ms. Pino has a motive to protect Mr. Capeling, which could explain her readiness to blame Mr. Edwards. In my view that motive has not been made out. Ms. Pino did not attempt to disconnect Mr. Capeling from the grow operation. She described him as the one who hired her, and relieved her of work at 21 St. Clair Ave, and she expressed regret that she had trusted him. Even though I am rejecting Mr. Carroll's motive theory, this in no way adds to her credibility. Mr. Edwards is under no burden to explain why Ms. Pino might lie and this is not a case of proved absence of motive. I have to judge her relevant testimony on its merits in the context of the case as a whole.

[34] I note that much of what Ms. Pino said about Mr. Edwards would do nothing directly to help exculpate her or advance her case. Although his name came up on a number of occasions Mr. Edwards was little more than a sideline in her evidence until she was cross-examined by Mr. Carroll. This includes her claim that he was always there, her descriptions of him sleeping at 21 St. Clair Ave. on occasion including in the ground floor bedroom, and her evidence that people visited him there when he was ill on one occasion. None of this evidence was important to her defence and indeed her ability to put him there regularly required her to make the admission that she too was regularly present over a protracted period, something that made her defence more difficult.

[35] I also recognize that to a degree her evidence finds some support in Mr. Edwards' presence at 21 St. Clair Ave on 25 June 2010 and in the discovery of the two "Randy Edwards" documents. Specifically, the person she claims to have been an ongoing presence at 21 St. Clair Ave. was there on 25 June 2010 on the only opportunity the police had to get inside, and he had been there for more than four hours. And personal documents in his name were located at the residence, albeit in the ambiguous circumstances described. Both of these factors are consistent with the possibility that Ms. Pino was being truthful about his involvement. This evidence is, however, too equivocal in my opinion to be capable of restoring faith in Ms. Pino's testimony about Mr. Edwards. She lied about him giving her a box of groceries and paying her several times a week for simple cleaning services and it is not inconceivable that she may have chosen to finger him more broadly to give credence to her own denials of responsibility.

Verdict on Mr. Edwards

[36] Ultimately, the Crown's case is undoubtedly deeply suspicious. The standard required for conviction, of course is much higher than that. It is proof beyond a reasonable doubt based on the evidence presented, not based on what might have been had the evidence initially offered been properly presented and authenticated. The evidence before me is therefore insufficient, in my view, to permit me to make a finding beyond a reasonable doubt that Mr. Edwards exercised control over the grow operation or offered any assistance or encouragement to the crimes that were occurring. I therefore find Mr. Edwards not guilty on each of the remaining charges.

Released: June 27, 2012

_________________________________

The Honourable Justice David M. Paciocco

Footnote

[1] The transcript of 2 November 2011 at p. 36 reads "its for the purpose of grounds, it's not for the purpose of the truth of the content, it's to who the owners of the vehicle are" but the evidence was as recounted above and was clearly intended to clarify that the Crown was not relying on vehicle registration information recounted by Det. Cst. Schoorl as proof of ownership.