Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-02229-01 Date: 2013-08-16 Ontario Court of Justice

Between: Her Majesty the Queen — and — Jason Sher

Before: Justice Richard Blouin

Heard on: August 12, 13, 14 and 15, 2013

Reasons for Judgment on Forfeiture Application

Released on: August 16, 2013

Counsel:

• J. Gevikoglu for the Federal Crown
• D. North for the interested party Esther Sher

Judgment

BLOUIN J.:

Background and Guilty Plea

[1] On November 7, 2012, the defendant entered a guilty plea before me to one count of Production of Marijuana and one count of Possession of Marijuana for the Purpose of Trafficking. In support of that plea, the defendant admitted to the following:

On Wednesday, December 15th, 2010 a fire broke out in the residence at 150 Kingsbridge Circle in Thornhill. Upon arrival of the Vaughan Fire Department, Mr. Sher was present, he stated to fire personnel that there were marijuana plants in the basement of the residence, his residence. At the time his common-law wife, Ms. West, was also present and indicated the same. A controlled drugs and substances search warrant was obtained and a search incident to that. There was 1,068 marijuana plants in the basement of the residence. Also seized were 14 lights, 14 shades, three blowers, two water pumps, 12 ballasts, a resin extractor and a grow chart.

[2] The defendant received a sentence of 90 days to be served intermittently on the Production of Marijuana charge and a concurrent 18-month conditional sentence to be served in the community on the Possession for the Purpose of Trafficking charge. I agreed to accede to the joint submission proposed by counsel largely because the defendant, who was in the middle of a trial in front of another judge, gave up his right to have a judicial finding in spite of legal hurdles facing the Crown.

Forfeiture Application

[3] As part of that sentence, the Crown now brings an application pursuant to section 16 of the Controlled Drugs and Substances Act (CDSA) for forfeiture of 150 Kingsbridge Circle. Notice was given to the registered owner of the property, Esther Sher, the mother of the defendant.

[4] The parties agreed that 150 Kingsbridge Circle was offence-related property and that the offence of Production of Marijuana was committed in relation to that property. As a result, the property shall be forfeited to the state, subject to sections 18 to 19.1 of the CDSA.

Applicable Legislation

[5] Relevant to this case, section 19(3) of the CDSA reads:

(3) Where a court is satisfied that any person, other than

(a) a person who was charged with a designated substance offence, or

(b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,

is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.

Ms. Sher's Application for Restoration

[6] Ms. Sher requests a restoration of the property pursuant to section 19(3) of the CDSA. She maintains that although the property should be forfeited as offence related property under section 16(1), she is entitled to its return as she appears to be innocent of any complicity or collusion regarding its use as a residential marijuana grow operation.

Evidence Presented

[7] The Crown called:

• Andre Clafton – an inspector with Vaughan Fire;
• Det. Barry Smith – a conceded expert in marijuana grow operations;
• Det. Peter Fleming – the lead investigator; and
• Det. Constable Trevor Byard – a conceded expert in marijuana grow operations.

Also admitted on consent was:

• an affidavit of Det. Constable David Waterfield; and
• a statutory declaration of Andrea James Simone

[8] The defence called Jason Sher, and two friends of Ms. Sher (Linda Fix and Lea Ellenbogen). I refused to admit the evidence of Mr. Bernard Little, as the test in R. v. Mohan, [1994] S.C.J. No. 36, was not met.

Findings of Fact

[9] Ms. Sher is the registered owner of this property. This was established by the Land Titles abstract submitted into evidence on consent. A recent appraisal has the property valued at $650,000. It is mortgage free. Ms. Sher acquired it in 2002, and leased it to tenants, including, before its discovery as a basement marijuana grow operation, her son Jason. Jason, since the spring of 2010, lived on the upper floors of the house with his common-law wife. A child was born in July 2010, approximately five months before the fire on December 15, 2010.

[10] As the lawful owner, Ms. Sher submits the court should be satisfied that she "appears to be innocent" of any complicity or collusion. I am satisfied. In fact, in my view, the evidence establishes that she was not complicit, nor did she collude. As a result, the issue of onus as to which party must satisfy the court regarding the appearance of collusion or complicity is moot in this case. There are conflicting rulings on the issue of onus. I will say a plain reading of the subsection suggests to me that it is the lawful owner who must satisfy the court they appear innocent of complicity or collusion.

Analysis of Crown's Evidence

[11] The Crown's evidence suggesting Ms. Sher's lack of innocence is reduced to surveillance evidence of Ms. Sher entering the main floor of 150 Kingsbridge on a number of occasions in the weeks leading up to the discovery of the grow operation, and an expert police officer opining that the smell of vegetative marijuana would have been "overpowering" inside the residence. I say "would have" because that officer never visited the residence. His opinion is based upon his experience with 30 to 40 other marijuana grow operations. In addition, the statutory declaration of Andrea Simone makes reference to Ms. Sher receiving an envelope for "downstairs" from her son. I am not certain that would assist the Crown even if I accepted it. Mr. Simone was not a witness nor subject to cross-examination. He was biased in attempting to point a finger at others. I do not accept his declaration in any event. In my view, the evidence suggesting Ms. Sher's knowledge and involvement was exceedingly weak.

[12] In my view, the evidence leads me to conclude that Ms. Sher knew nothing about the grow operation in the basement of her home. Her son, Jason, although an admitted criminal and liar, gave evidence which I accept as true. He answered questions carefully and thoughtfully. He admitted uncomplimentary things.

Concealment Measures

[13] Mr. Sher took steps in constructing an exhaust system which removed the air from the three rooms enclosed in the basement that contained marijuana plants. Obviously, he intended to conceal the existence of a grow operation from neighbours and visitors. He explained his exhaust system contained not only a carbon charcoal filter, which removed the smell, but a sound proofing system that limited the vibration of the exhaust fan. As a result, he was satisfied that no smells or sounds would be heard on the main floor that would attract attention. Two other witnesses, a friend and an acquaintance of Ms. Sher, testified to their presence at a jewellery party four days before the fire. They were present for one to two hours and smelled nothing unusual. I accept they are not experts in the identification of the distinct aroma of growing marijuana, but they do not have to be. I accept their evidence as it confirms Jason Sher's position that he deployed an exhaust system that eliminated odours, and that many people had been in and out of the home without suspicions being raised.

Decision

[14] Accordingly, Ms. Sher having satisfied this court that she was innocent of collusion or complicity, there is no reason in law or equity that would require me to do anything other than return the property. Pursuant to section 14 of the CDSA, the property was restrained by Justice Del Frate on January 17, 2011. Variations were subsequently granted to permit the property to be leased. Pursuant to my ruling under section 19(3) of the CDSA, the property shall now be returned to Ms. Sher and, as a result, the restraint order shall discontinue as provided for in section 14(9).

Released: August 16, 2013

Signed: Justice Richard Blouin