Court File and Parties

Court File No.: 3711-998-13-0684-01 Date: 2014-09-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kirk Machula

Before: Justice Robert G. Selkirk

Heard on: June 17th and September 3rd, 2014

Reasons for Judgment released: September 8th, 2014

Counsel:

• Timothy S. McCann, for the Crown
• Adrian R. Cleaver, for the accused, Kirk Machula

Judgment

SELKIRK J.:

[1] Mr. Kirk Machula plead guilty to one count of Production of Marijuana, contrary to s. 7 of the Controlled Drugs and Substances Act. A sentencing hearing was then held to establish the number of plants produced by the accused.

[2] This is relevant of course due to the various minimum sentences which apply depending on the number of plants.

[3] Section 7(1) reads:

"Production of Substance/Punishment/Factors.

7.(1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV."

[4] Section 7(2)(b)(iii) reads:

"(2) Every person who contravenes subsection (1)

(b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

(iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,"

[5] The Crown has served Notice that it is seeking a one year minimum sentence based on the accused having produced more than 200 plants. The Crown, of course, must prove this on the usual criminal standard of proof beyond a reasonable doubt.

[6] When the search warrant was executed a marijuana grow operation was located. It was complete with hi-intensity lights, fertilizers, trays of pots, timers and a venting system.

[7] The officers found 398 three to five inch clones plus 23 mature plants in the basement. Outside they located an additional 32 three to five inch clones.

[8] It was agreed that the 430 three to five inch clones were cuttings from the mature plants which had been placed in soil, watered, fertilized and situated under grow lights. They were all in individual peat moss pots.

[9] Mr. Machula claimed possession of all of the plants and the paraphernalia.

[10] There was some issue raised as to whether the counting of these clones was accurate. I find it was not only because I accept that the officers counted each one but also because the accused confirmed the accuracy of the count in his evidence.

[11] The remaining issue is whether a clone is a plant as that term is used in s. 7(2)(b)(iii).

[12] The evidence surrounding this issue includes the testimony of Constable Szczgiel who was not only the Exhibit Officer and thus the officer who collected the clones but was also the officer responsible for the destruction of the clones.

[13] After he had taken a random sample of the clones for the purpose of analysis, he sought and obtained an Emergency Destruction Order so that he could dispose of the plants.

[14] As he did not want to burn the dirt and peat moss pots along with the plants, he removed each clone from its pot and put it in the bag for destruction. He testified that each of the clones had a root system attached to it. In cross-examination, however, he conceded that he made no note of there being roots or not and admitted that at the time he was not aware that whether there was a root system or not was of any significance. This raises the concern about whether he paid any attention at all to whether there were root systems or not. Why would he if it was of no significance to him?

[15] Mr. Machula testified that some clones had been cut and planted some two to three weeks earlier and he agreed that they would have root systems. He said, however, that he had cut new clones and put those in pots just two days prior to the search. He said those would not yet have grown roots. He did not say how many recently cut clones there were.

[16] The defence argues that in order to be a plant there must be a root system. In other words that a cutting from a mother plant stuck in a pot of dirt is not a plant.

[17] There is no definition of plant in the CDSA. There is limited Canadian case law on this point either. In such circumstances one would look to the ordinary meaning or definition of such a word. The Canadian Oxford Dictionary, 2nd ed., defines plant as:

"any living organism of the kingdom Plantae, usually containing chlorophyll enabling it to live wholly on inorganic substances and lacking specialized sense organs and the power of voluntary movement."

[18] This definition supports the defence's position because without roots the organism is not able to live wholly in inorganic substances.

[19] The defence cites the following cases for the proposition that visible roots are a necessary piece of evidence to be established by the Crown beyond a reasonable doubt in order for the organism to properly be characterized as a plant. Whether an organism is a plant or not is significant because the sentencing regimes in those cases, both in Australia as well as the United States impose a tariff based on the number of plants involved.

[20] The first case cited is R. v. Francis-Wright, a decision found at 2005 VSCA 79. This is a decision of the Court of Appeal in the State of Victoria, Australia.

[21] In this case the definition of plant was the main issue as the Crown had to prove that there were more than 100 plants in order to characterize it as a commercial operation for the purpose of their legislation. Their legislation also does not include a definition of the word "plant".

[22] The Crown's expert testified, that while there was a dispute for legal purposes as to what constituted a plant, he expressed the opinion that, "a plant was an organism which had or has, the ability to sustain life through photosynthesis. Once a cutting had been planted in some sort of suitable substrate, it became a plant…..It was not necessary for a plant to have roots." He included a dead plant within his definition.

[23] The defence witness expressed the opinion that a plant was a viable vegetative entity that is capable of sustained and independent life. A cannabis cutting became a plant once it had developed a good root system which was viable in the sense that the cutting was capable of maintaining photosynthesis through it.

[24] The Court decided that a plant "included a cutting which had struck or established roots." It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a part of that plant. This meaning also included a dead plant.

[25] Thus, the existence of roots, whether alive or dead, is what distinguished a cutting which had become a plant from a cutting which was simply a piece of the mother plant.

[26] This decision was followed in R. v. Apostolides, 2008 SADC 28, a decision from the District Court of South Australia where the Court found that the existence of roots was necessary to make the organism a plant but found that evidence was provided by the officer who testified she had to tug on the plants to remove them from their pots.

[27] In R. v. Siebel, 2010 SASCFC 56, the Supreme Court of South Australia (Court of Criminal Appeal) the Court wrote at para 11:

"In my opinion, no error has been demonstrated. The Judge made it clear that he was sentencing the appellant for producing 45 plants. He observed that there were 38 clones with some root development, plus a further seven plants. The Judge did note that there were a further 130 clones which had not displayed root development and so were not alleged by the prosecution to be cannabis plants. That observation was accurate."

[28] In a Drug Primer, 2013 the United States Sentencing Commission wrote:

"A marijuana plant is defined as "an organism having leaves and a readily observable root formation." See §2D1.1, comment. (n.2). See also United States v. Foree, 43 F.3d 1572, 1581 (11th Cir. 1995) (a cutting or seedling from a marijuana plant is not considered a plant until the cutting or seedling develops roots of its own)."

[29] In United States v. Foree, 43 F.3d 1572, (1995), U.S. Court of Appeal, 11th Circuit, at para 28 the Court wrote:

"We thus adopt the analysis of our sister circuits. Marijuana plants have three characteristic components "readily apparent to the unaided layperson's eye: roots, stems, and leaves." ……"Until a cutting develops roots of its own, it is not a plant but a mere piece of some other plant." Id. Accordingly, we hold that cuttings and seedlings are not "marihuana plants" within the meaning of 21 U.S.C. Sec. 841(b) and U.S.S.G. Sec. 2D1.1(c) unless there is "some readily observable evidence of root formation." "

[30] This definition was later provided as a jury instruction on the definition of marijuana plants in United States v. Tibor Alex Guba, United States District Court, N.D. Florida, Gainesville Division, Case No. 1:09-cr-17 SPM/AK-1.

[31] In the case at bar, the Crown suggests that:

"The definition of produce may assist the Court in determining whether each clone should be counted as a plant. Section 1 of the CDSA defines "produce" as meaning:

to obtain the substance by any method or process including:

(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or

(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained."

[32] I note that the definition of propagate contained in the Canadian Oxford Dictionary, 2nd ed., reads as follows: "breed specimen (of a plant, animal etc.) by natural processes from the parent stock".

[33] I believe that this definition describes the process of cloning whereby a piece of the mother plant is inserted into soil, watered, etc. in the hopes a viable plant will ensue.

[34] In R. v. Gauvreau the defence argued successfully at trial that being in possession of marijuana plants hanging from a ceiling for the purpose of drying did not fall within the prohibition at that time, of "cultivate". The Crown appealed.

[35] The Ontario Court of Appeal wrote:

"In this Court, the appellant argued that the word "cultivate" described an ongoing process that included the maturation of the plants by drying or curing, which had not been completed on July 23, 1980. I am unable, with respect, to agree that the word "cultivate" has such a broad meaning. A number of Canadian decisions interpreting s. 6(1) have adopted the more limited definition found in the Oxford English Dictionary:

To bestow labour and attention upon (land) in order to the raising of crops; to till; to improve and render fertile by husbandry.

R. v. Fahlman, Champagne and MacManus reflex, (1968), 67 W.W.R. 109, 5 C.R.N.S. 192, (B.C. Co. Ct.); affirmed on other grounds, [1970] 2 C.C.C. 273, 8 C.R.N.S. 245, 70 W.W.R. 438 (C.A.); R. v. Busby (1972), 7 C.C.C. (2d) 234 (Y.T.C.A.); R. v. Munce et al. (1974), 15 C.C.C. (2d) 326 (Ont. Co. Ct.); see also MacFarlane, Drug Offences in Canada (1979), pp. 247-48.

The restricted meaning of the word "cultivate" is even more apparent from other dictionary definitions. The Oxford English Dictionary provides an alternative definition specifically applicable to the cultivation of plants:

To bestow labour and attention upon (a plant) so as to promote its growth; to produce or raise by tillage.

A more colloquial definition is given in Dictionary of Canadian English (Gage, Toronto, 1966):

1. prepare and use (land) to raise crops by ploughing it, planting seeds, and taking care of the growing plants. 2. help (plants) grow by labour and care.

All the definitions are alike in restricting the meaning of the word "cultivate" to activities associated with the growing of plants. They clearly exclude the processing of a plant after harvest, whether by curing, drying or other means. I am, therefore, of the opinion that the learned trial judge was correct in holding that the respondent did not "cultivate" marihuana on July 23, 1980, the date named in the indictment."

[36] Cultivation was also defined in R. v. Arnold, 1990, 74 C.R. (3d), 394, B.C.C.A. at p. 398, the Court wrote, "In our judgment, the prohibited conduct commences when seeding takes place and continues until the marijuana plants are harvested or they die." The obvious point is that seeds do not have roots, yet the act of seeding falls within the definition of cultivation.

[37] In R. v. Quan, 2011 ONCJ 194, at para 68 the Court wrote, "The law is clear that the production offence involves activity promoting the development of marijuana from seed to mature plant."

[38] The act of cutting a piece of the mother plant off and treating it with a root hormone, as Mr. Machula did here, and placing it in soil which is watered and fertilized and placed under grow lights fits well within the common usage of the words cultivate or propagate. This requires the cutting to be something more than just a piece or a part of the mother plant. It requires evidence of efforts to grow that piece into a mature plant by placing the cutting into soil and providing it with the necessities for growth such as water, nutrient and light.

[39] This definition is appropriate because it avoids mere pieces or parts of the mother plant without anything more falling into the definition of plant but captures pieces being cultivated or propagated into mature marijuana plants whether or not there are roots. It captures the recently started grow operation which still has all the inherent dangers and risks of a grow operation.

[40] I will define a marijuana plant as a substance analysed to be contained in Schedule II which is being cultivated or propagated or harvested.

[41] Pursuant to that definition, the existence of roots is irrelevant and Mr. Machula's own evidence established that over 450 plants were being grown.

[42] It therefore does not matter that I do not believe his evidence that it was all for personal use as possession for the purpose of trafficking is not necessary under s. 7(2)(b)(iii). Simple possession of over 200 plants is all that is required.

[43] I also do not agree that his evidence that some of the plants will be subject to destruction by insects, animals, thieves or police officers should be taken into account to raise a reasonable doubt that the 453 plants would be reduced to something under 200 plants. This is mere speculation. It also ignores that on the day in question he did in fact possess 453 plants.

[44] I appreciate that the Crown is prepared to concede that the plants that may not have roots not be counted for the purposes of s.7(2)(b)(iii), however, I am not bound by that concession as I believe it is wrong in law.

[45] Mr. Machula will be convicted of production and I find that the parameters of s.7(2)(b)(iii) of the CDSA have been proven to exist beyond a reasonable doubt.

Released: September 8th, 2014

The Honourable Mr. Justice Robert G. Selkirk