R. v. Xue Tan Zheng

Ontario Court of Justice Old City Hall – Toronto

Between: Her Majesty the Queen And: Xue Tan Zheng

Counsel:

S. Virk, for the Crown
K. Schofield, for the Defendant

Heard: March 31, April 1-3, 8, June 19, November 7 and 18, 2014

REASONS FOR JUDGEMENT

MELVYN GREEN, J.:

A. INTRODUCTION

[1] There was a break-in at a marijuana "grow op" at 81 Mack Avenue in Toronto in the early hours of March 6, 2012. The defendant, Xue Tan Zheng, was inside the facility at the time. He ran outside, called 911, waited for the police and reported the incident. He was later charged with production of marijuana found inside the grow op and with possession of marijuana for the purpose of trafficking. No one else was charged with production-related offences as a result of the police investigation.

[2] The cultivation of some of the marijuana plants found at 81 Mack was authorized by Health Canada pursuant to licences issued under the MMAR – the Marihuana Medical Access Regulations, SOR/2001-227. The defendant testified that he was a mere employee at the site and that his responsibilities were limited to security monitoring and cleaning. He was not authorized to possess marijuana and his name does not appear on any of the production licenses referable to the Mack address. Those licences authorized the production of far fewer marijuana plants than were found at the grow op. The police seized the unauthorized excess plants.

[3] Zheng in effect concedes that he had sufficient knowledge and control of the marijuana grown at 81 Mack to render him a party to its production and, given the vast amount involved, its possession for the purpose of trafficking. His defence, in essence, is that he believed the production of all of the plants at 81 Mack was authorized by valid licenses and that he was therefore acting within the law in working at the facility. To the degree that his belief was mistaken, he says, it was an honest mistake of fact rather than law. As a result, he argues, he is not criminally liable.

[4] Two police officers who attended the grow op on March 6, 2012 testified, as did the defendant. An Agreed Statement of Fact simplified the narrative exposition. A tape recording of the defendant's 911 call was also received into evidence, as were several Health Canada production licences and some related documentation. A video recording of the defendant's police interrogation on the evening of the burglary was also admitted. A video recording of the grow op and photos and certain documents taken during the execution of a search warrant at 81 Mack complete the evidentiary record. No constitutional challenge is here taken to the governing legal regime. As in all criminal cases, the ultimate legal burden rests on the Crown to prove beyond reasonable doubt each essential element of the two offences charged.

B. EVIDENCE

(a) The 911 Call

[5] The defendant called 911 to report a break-in at 81 Mack Avenue at 2:46am on March 6, 2012. He explained that the address was a legal marijuana factory and that he was working inside when thieves entered. He had seen them in the grow room minutes earlier. They had a big white truck. He told the operator his name ("Kevin Zheng") and date of birth. He was advised to flag down the police when they arrived. He did.

(b) The Police Attendance at 81 Mack

[6] The first police officer, Sgt. (then PC) Chris French, reached 81 Mack a little before 3am. The defendant advised French that the thieves were "still in there" and pointed out the location of their truck – backed up to a staircase in the grow op's laneway. French could see about eight persons loading bags into the truck. He and a second officer pursued the burglars, ultimately arresting three men. French then returned to 81 Mack. The defendant, who had remained on the scene, identified himself by way of his driver's licence and provided his cell phone number. In answers (conceded voluntary) to the officer's questions, the defendant explained that he had been watering plants when he first heard the sound of glass smashing and saw strangers coming through a window. French confirmed that there was a CCTV system at the grow op, and the defendant may also have said something about it during their exchange.

[7] The truck believed to belong to the break-in suspects was found to contain approximately 300 plants, along with 314.34 grams of dry marijuana.

(c) The Police Search of 81 Mack

[8] The police obtained and executed a search warrant at 81 Mack later the same day. The grow op was a unit in an industrial complex. It was leased to a numbered company. The defendant was neither the owner nor lessor of the unit. There is also no evidence connecting him in any proprietary or official manner to the numbered company.

[9] A total of 1,507 marijuana plants were located in three rooms on the premises. One contained 831 plants, about evenly divided between clones and flowering plants. The second had 336 four-foot high flowering plants. There were 30 healthy plants in the third room along with 310 empty pots. (The close coincidence between the number of empty pots and the plants found in the truck led the police to infer that this third room had been the initial object of the burglars' attention.) The police did not seize the remaining 30 plants in the last room as they viewed their number as authorized by valid Health Canada licenses.

[10] Another, smaller room, described as a sleeping area, contained two beds, a desk or table and a small fridge. Several documents seized in this room bore the defendant's name, including a current credit card statement, a current TD Bank statement and a current Rogers cell phone bill. A CCTV monitor and recorder were seized from the desk in the room.

[11] The total "wet weight" of the plants seized at 81 Mack was 181.43 kilograms. Fully grown and dried, the marijuana plants at the grow op were estimated to yield 105,490 kilograms of marijuana (calculated at 70 grams per plant). The commercial value of this production was estimated to be between $527,450 and $632,940 (if sold at the kilogram level) and over two million dollars if sold for $20 a gram. In addition, some 314.34 grams of dried marijuana were seized from 81 Mack.

[12] Four Health Canada-issued medical marijuana production licences (each styled a "Designated Person Production Licence") were located on the premises. Each authorized licence-specific production at 81 Mack, the named "production site" in all four:

One named Bing Quan Chen as the "holder of license" and Marlene Kennedy as the "authorized person". The licence authorized a production maximum of 15 plants at the site and a storage maximum of 675 grams of dried marijuana. The licence expired on January 12, 2012, approximately two months before the break-in at 81 Mack.
A second licence named Dana Perry Clark as the "holder" and Chad Andrew Cooke as the "authorized person". Production of up to 83 plants and maximum storage of 3735 grams of dried marijuana were authorized. The licence expired on February 17, 2012, about three weeks before the break-in.
The "holder" of the third production license was again Dana Perry Clark. The "authorized person" was Craig Anthony Cain. The production limits under the licence were 15 plants and 675 grams of dried product. The licence did not expire until April 28, 2012, some seven weeks after the defendant summoned the police to 81 Mack.
Maxwell Larkford Reid was the "holder" of the final licence and Ris Stone was the "authorized person". Again, the licence authorized a maximum of 15 plants and 675 grams of dried marijuana. This licence did not expire until May 5, 2012, some two months after the break and enter.

Despite police inquiries of Health Canada, there was no evidence that the first two of the above-listed licences had been renewed or extended. Accordingly, production of only 30 marijuana plants was authorized at 81 Mack at the time of break-in on March 6, 2012.

(d) Implementation and Enforcement of the MMAR

[13] Although not qualified as an expert, DC Brandon Karstoff was a 14-year veteran of the Toronto Police Service drug squad and particularly familiar with the statutory regime governing medical marijuana production. No objection was taken to his evidence respecting the implementation and enforcement of that regime.

[14] A "commercial system" has now replaced the "designated grow" system in place on March 6, 2012. Under the designated grow regime that then obtained (the MMAR), the government, through Health Canada, authorized persons approved to use marijuana for medical purposes to grow their own plants or, alternatively, authorized others – designated growers – to grow marijuana for up to four licensed medical consumers. Pooling of production at a site specified in the licences, either by way of individual or designated cultivation, was quite common. There was no limit on the number of plants that could be produced at a single site, so long as the total production did not exceed the cumulative authorization afforded the various licensees engaged in the shared use of the same named facility.

[15] There was more than a little uncertainty respecting the limits of assistance a designated grower could lawfully obtain from others. Designated growers, in Karstoff's view, were not obliged to be onsite at all times. They could contract out necessary, peripheral services such as responsibility for security and maintenance. They could not, however, assign or delegate core production responsibilities. Someone hired as a "gardener", for example, would have to be named on the licence to be under its protective umbrella. Karstoff's interpretation, he acknowledged, was difficult to reconcile with both the realities of operating a licensed production facility and regulations that appeared to permit only one "holder" to be named on a designated-person production licence: Marihuana Medical Access Regulations, s. 37. I return to a fuller discussion of the MMAR in due course.

(e) The Defendant's Police Interview

[16] The defendant voluntarily accompanied the police to 41 Division following their initial investigation. He was interviewed on videotape about the break and enter incident and the grow op for over an hour, from about 5:20 to 6:27am on March 6, 2012. At the 5:48am point, the defendant was cautioned, somewhat indirectly, that he was being investigated in relation to the marijuana found at 81 Mack. He was released without charge at the conclusion of the interview.

[17] Crown counsel did not seek to rely on the police interview of the defendant and left to me the question of its reception into evidence, as urged by the defence. Applying R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1, I admitted the DVD of the defendant's police interrogation. As summarized in R. v. Badhwar, 2011 ONCA 266, 270 C.C.C. (3d) 129, at para. 17:

Edgar stands for the proposition that "it is open to a trial judge to admit an accused's spontaneous out-of-court statements made upon arrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence of the reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself or herself to cross-examination". The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but "is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing on guilt or innocence".

[18] The police interview proceeds as follows: After the defendant consents to being videotaped, the police advise him that they are investigating a break and enter at 81 Mack and that he may be a witness at a trial. They also caution the defendant respecting his potential criminal liability for providing a false statement. The defendant's cellphone rings during this exchange. He says "sure" when told to turn off the phone as he retrieves it from his pocket. He briefly looks at the phone before returning it to his pocket, saying, "It's an alarm clock. [Indecipherable …] spray the water now". The defendant then completes the formal trappings of a KGB statement.

[19] The defendant started work at 5pm the night before. The grow rooms were too warm and he adjusted the temperature. Asked what happened, the defendant explains that he was walking around the "big room" when he heard cracking and smashing. It was about 2am. He saw something fall and a couple of intruders. He left and called 911 about eight minutes after first hearing the noise. At the request of the police, the defendant draws a sketch of the area. He also describes what he believed to be the burglars' vehicles and their use of a ladder to enter the grow op.

[20] About 5:48am, the police inquire if the facility is a medical marijuana grow operation. The defendant affirms that it is, adding that it's "legal" and that he has seen "the papers" confirming its legality. One of the officers expresses some "suspicions" and, at 5:49am, notifies the defendant of his right to counsel respecting his investigation of marijuana production offences at 81 Mack. Asked if he understands, the defendant replies that "CCMC" has its own lawyer, and "what I know I can tell you". The officer advises that there is a "possibility of charges". "Me?" asks the defendant. "Yes", replies the officer; that, he explains, is why the defendant was afforded his right to counsel. The defendant declines counsel. Formal cautions ensue, followed by the question, "What can you tell me about the facility?"

[21] The defendant narrates that he has only been working at the grow op for about a month, since late-January, and, later, that he had only worked at the factory on five or six days. Although he hasn't counted them, he estimates there are a couple of hundred plants at various stages of maturity. CCMC, he says, "tells us what to do" since "they're licensed". The defendant had not cut plants, witnessed a harvest or weighed anything. His responsibility, he says, is looking for "bad guys" on the "camera" (presumably, the grow op's CCTV security monitor situated in the sleeping room). On request, the defendant describes, if vaguely, the physical appearance of a couple of Mandarin-speaking men who have slept over at 81 Mack, but says he does not know their names. "We don't touch" inside, he says, because "if you touch you can do something bad together". He acknowledges that an iPad found in the sleeping room is his, and he wants to return to the facility to retrieve it along with the shoes, bag and PlayStation he also left there.

[22] The defendant was hired by "Vincent", a Cantonese-speaking man he met long ago. He describes Vincent as a slightly fat Asian of about 50 with a moustache and white hair. He does not have Vincent's phone number with him. The defendant says the wages were good, but he has not yet been paid. He was supposed to attend at the police station that week to obtain a police background check.

[23] If the police came, the defendant says he had been instructed to simply show them the licences at 81 Mack and "you'll be fine". The officer conducting the interview tells the defendant he "think[s] they lied to" him. The defendant looks surprised to hear he was lied to. He had been told the operation was legal and saw "police papers" there; that, he says, is why he worked there. The chief police interrogator says he too saw the papers and that he has other officers trying to determine if the grow op is legal. The defendant offers to return the next day to further assist the police investigation if they have additional questions. He "promises" he would not have called the police if he knew the facility was illegal. Advised again that he could be charged, the defendant says this is "not fair", the marijuana did not belong to him and, once again, that he would not have called the police if he thought the grow op was illegal.

[24] Although not produced during the defendant's police interview, one of the documents (arguably a "police paper") found at 81 Mack was an invoice from the Toronto Police Service for "the recovery of administration and enforcement costs for city agencies in relation to marijuana grow operations".

(f) The Defendant's Testimonial Account

[25] The defendant testified over the course of four days, chiefly by way of cross-examination.

[26] The defendant immigrated to Canada in 2000. He was 27 at the time of trial and employed as a manager at a Japanese restaurant. From 2007 to 2012 he had worked at a branch of the "Mandarin" restaurant chain. The defendant testified with the aid of a Mandarin interpreter, characterizing his own command of English as "OK" where simple English was involved. He could not, he said, read English well.

[27] Vincent Tong was a customer at the Mandarin when the defendant first met him. They became "friends", according to the defendant, and in late-January 2012 Vincent offered the defendant work at 81 Mack. Recent competition in the vicinity of the Mandarin and his desire for a more secure position led the defendant to accept the offer. The defendant understood that 81 Mack was a marijuana production facility. Vincent later showed him some licenses and other documents that convinced the defendant the grow op was "legal". These documents, described earlier, were among those seized in the sleeping room at 81 Mack.

[28] The defendant understood that Vincent worked for CCMC, a company with offices on the Danforth in Toronto. Among other services, CCMC offered "MMAR licensing". Vincent took the defendant there before he began work at 81 Mack. The defendant did not attend the grow op before his first day of work there. He understood his job involved conducting CCTV surveillance and cleaning up the washrooms and certain common areas. It was not his job, he said, to cultivate or otherwise tend to the marijuana plants. The defendant had no prior training or experience in security.

[29] Prior to the evening of March 5-6, 2012, the defendant only worked at 81 Mack on two occasions. He had no fixed schedule and Vincent would assign him workdays by phone. The defendant had not signed any paperwork related to his employment nor had he been paid as of March 6th. This, he explained, was common in the Chinese business world during periods of probationary employment. Based on his performance, the defendant expected to be paid about $3,000 a month by CCMC if he qualified for fulltime employment. He had been earning about $2,800 a month at the Mandarin.

[30] The defendant's first day on the job was in late-January 2012, likely January 28th. He met Vincent at the door to 81 Mack and they entered through a key hidden in the grass. Vincent showed the defendant the Health Canada licences and related documents that were hanging from a nail on a wall in the sleeping room. This was the first time the defendant had seen any production licences. Vincent spent about an hour introducing the defendant to the premises and his duties, chiefly cleaning and watching the CCTV security monitor. He instructed the defendant to use his own discretion if he observed a "problem" while watching the security feed but to call the police if he suspected someone was doing "bad things". The defendant did not know who performed the cleaning and security functions at 81 Mack when he was not present.

[31] The defendant's second day on the job was at the very end of February or beginning of March. He worked from about 5pm until midnight or 1am. Vincent arrived shortly after 5pm and was soon joined by Dana Clark and Bing Quan Chen, whose names the defendant learned through Vincent a day or two after the March 6th break-in. All three left the defendant alone at the grow op after an hour or so. A fourth man, Michael Li, turned up around 10pm. Li invited the defendant to the grow rooms and they talked while he, Li, watered the plants. At trial, the defendant could not recall the subject of their conversation; it was a long time ago and his memory of their exchange had washed away. Li and the defendant left 81 Mack after midnight. The defendant told Vincent that because of other obligations he would not be able to return to work at the grow op until March 5th.

[32] The defendant began work at 81 Mack at about 5pm on March 5th. He used the key hidden in the grass to enter the premises and then set about watching the CCTV feed on the monitor and cleaning his assigned areas. He expected Li to show up, but he never appeared. The grow op areas were hot and the plants that Li would ordinarily irrigate were very dry; many appeared to be dead. The defendant lowered the temperature on the thermostat. Having watched Li in the past, the defendant also took on the task of spraying or "misting" the plants in one of the rooms with a fine shower. He had not been trained or instructed to water the plants and this was the only occasion he had done so. He agreed that spraying the plants and regulating the factory temperature were not part of his responsibilities, but he had undertaken them in Li's absence. The defendant denied removing dead plants from their pots, but agreed he did remove the root systems of plants that had already been pulled out of their pots and, as well, cleaned up and disposed of dead plants that someone else had removed from their pots and left on the floor.

[33] The defendant heard a cracking sound while spraying on March 6th. On investigation he saw intruders breaking the windows and entering the premises. He left 81 Mack, walked to a nearby intersection and called 911 on his cell. He would not have done so if he thought the facility was not legal. He could readily, he said, have simply walked away from the situation. The defendant was still on the phone when the police arrived. He waived them down, pointed out the break-in suspects, and followed the police on foot as they drove towards their truck. He told the police what had occurred and waited to accompany them to the police station to assist their investigation. He had no concerns about the police entering the grow op as it was "licensed". He knew his interview at the police station was being videotaped and adopted the truth of his March 6th statement during his examination-in-chief.

[34] The defendant's cell phone rang at one point during his video interview. As earlier noted, the defendant, on picking it up, says "Alarm clock" and words to the effect that it is time to spray the water. Pressed in cross-examination, the defendant explained that the ring was a call from his wife and not an alarm. The defendant did not want to risk frightening his wife by having to explain his presence with the police if an officer instructed him to answer a phone. Accordingly, as he had already told the police that he had sprayed inside the grow areas he felt the safest course was to attribute the ring to an alarm.

[35] The defendant's evidence as to when he had come to know Vincent's last name is somewhat fluid. In examination-in-chief, he testified that he knew the last name – Tong – at the time of his police interview, but only learned Vincent's phone number after March 6th. The defendant's cell phone displayed "unknown" every time Vincent had called him. In cross-examination he testified that he was "not sure" if he knew Vincent's last name when interviewed by the police and, later, that he did not know Vincent's last name at that time; had he, he said, he would have told the police during his videotaped interview. The defendant then expressed confusion, explaining that he had visited Vincent at CCMC very soon after the interview and likely learned his last name on that occasion; this, in effect, was why he had mistakenly testified in direct examination to knowing Vincent's last name at the time of his police interview. The defendant insisted he had answered all the police questions. Had he had any reason to conceal anything from the police he would have remained silent.

[36] Although also less than crystal clear, it appears that the defendant did not learn Michael Li's first name until sometime after March 6th when he asked Vincent for his name in the hope that Li might agree to be a defence witness. Until then he knew him only as Xiao Li, "Xiao" being an honorific or title. During his interview, the defendant told the police about and described the man he now knows to be Michael Li, but he did not provide Li's name or those of any other workers at the marijuana factory. He and Li "never touched", the defendant told the police, by which, he explained in his testimony, he meant that they never "dealt directly". The defendant was concerned that such communication could lead to misunderstandings – a belief that he and Li "do something bad together" – if Vincent or CCMC thought that he and Li had some direct dealings. In the end, the defendant agreed that he at least knew Li's last name when the police interviewed him. He did not know why he did not provide it to his interrogators.

[37] Although uncertain, the defendant believed he had obtained the forms required to complete a criminal background check before the break-in. He had, in any event, intended to complete this process as Vincent had advised him that CCMC required this formality.

[38] The defendant had been living at his parents, along with his wife and their child, since February of 2012. On one occasion, following a fight with his wife, he had slept over at 81 Mack. The defendant could not recall if it was the same night as he had worked at the factory but, in any event, he had entered by using the hidden key and had slept in one of the two beds in the sleeping room. Both beds, he testified, were present when he first began to work at 81 Mack. One was used by Li. The defendant denied installing the second. He agreed that, in the course of his videotaped interview, he had told the police that he "didn't want to leave too early in the morning, so [he] put bed there". In cross-examination he explained that he was nervous and had some difficulty expressing himself during his exchange with police, and that he meant that he had used the bed by putting his things on it, not that he had put the bed in the room. The defendant had left his white Adidas bag containing personal items, including his iPad and commercial invoices and statements, in the sleeping room about a week before the break and enter. The police found these items in the room on March 6th.

[39] At the time, the defendant understood that it was "generally illegal" to grow marijuana. He had, however, heard of legal marijuana production and had been shown licences at the factory that supported this belief with respect to the 81 Mack grow op. The defendant read these licences. He agreed they specified the number of plants that could be cultivated, but there were some words in the documents he did not understand. He did, however, appreciate that his name did not appear on any of the licences. Shown each of the four production licences found on the premises, the defendant acknowledged that two of the four had expired by March 6, 2012 and that the total authorized production quota for 81 Mack as of that date was thirty plants. He acknowledged as well that each of the grow rooms at 81 Mack contained hundreds of plants. At least one of the licenses, the defendant pointed out, had not yet expired when he first worked at the grow op. Further, he had done some research and learned that production licences could be renewed. In any event, the defendant testified that the plants "had nothing to do with" him as he was there solely to watch the CCTV security feed. He had only looked at the plants, he said, out of "curiosity". He knew the facility was licensed; the number of plants it was authorized to produce was not his "issue". He did not know the value of the marijuana at 81 Mack.

C. ANALYSIS

(a) Introduction

[40] The defence theory is that the defendant was mistaken as to the scope of the authorization to cultivate marijuana at 81 Mack, but that his mistake was one of fact rather than law and, as a result, absolved him of culpability for the offences with which he is charged. The Crown theory, in contrast, is that the defendant was a principal in the operation of the marijuana grow op at 81 Mack, that he well understood the production limits authorized by the Health Canada licences granted the facility, that he hid behind a mask of naiveté while, in fact, fully appreciating that his participation in the enterprise was a violation of criminal law prohibitions on the possession and production of marijuana and an abuse of the regulatory exemption afforded for controlled production of the drug for medical purposes. In the alternative, the Crown position is that the defendant, if honestly mistaken as to the lawfulness of the marijuana production at 81 Mack, suffered from a mistake of law rather than fact which, in the end, does not excuse him of criminal liability.

(b) The Regulatory Regime

[41] The Controlled Drugs and Substances Act (CDSA) prohibits the possession and production (including cultivation and harvesting) of marijuana. The Marihuana Medical Access Regulations (hereafter, the Regulations or the MMAR) used to control government-licensed production and distribution of marijuana for medical purposes. They were introduced in 2001, pursuant to sub.-s. 55(1) of the CDSA. The MMAR was in place on March 6, 2012 when the defendant first came to the attention of the police respecting his involvement in the grow op at 81 Mack. The MMAR were repealed on March 31, 2014 and effectively replaced by the Marihuana for Medical Purposes Regulations, SOR/2013-119. However, it is the provisions of the MMAR that are of concern respecting the matter before me.

[42] The MMAR is generally acknowledged as Parliament's response to the Court of Appeal's invalidation, in R. v. Parker, 146 C.C.C. (3d) 193, of the possessory offence under the Controlled Drugs and Substances Act. The MMAR have been subject to frequent Charter-based challenges since their inception (see, by way of example only, Hitzig v. Canada, 177 C.C.C. (3d) 449; R. v. Mernagh, 2013 ONCA 67; R. v. Smith, 2014 BCCA 322) and, prior to their repeal, were amended several times as a result of the Hitzig decision in particular. To be clear, and as noted earlier, no constitutional challenge is here taken to the governing Regulations or its enabling statute, the CDSA.

[43] As said by Health Canada in a 2008 online "Fact Sheet" (as quoted in Conron, C., "Canada's Marihuana Medical Access Regulations: Up In Smoke" (2012). University of Western Ontario - Electronic Thesis and Dissertation Repository. Paper 938, at p. 104), the objectives of the MMAR are "to establish a framework to allow access to marihuana by individuals suffering from grave or debilitating illnesses, where conventional treatments are inappropriate or are not providing adequate relief." The vehicle for achieving this objective are MMAR provisions that, inter alia, establish a complex procedure for individuals to apply for an "authorization to possess" (ATP) marijuana legally and for the issuance of licences to produce marijuana, either for personal use by the person issued an ATP (known as a "Personal Use Production Licence" or PPL) or as a designated producer (known as "Designated-Person Production Licence", or DPL) for a person issued an ATP. Applicants for DPLs must also hold a personal ATP before they can be granted a licence to produce marijuana.

[44] Each such production licence, when issued, is subject to explicit terms and conditions governing the specified location of the production site, the mode of production (indoors or outdoors), the maximum number of plants that may be produced at the site under the licence, the specified location for storage of harvested marijuana, the maximum quantity of dried marijuana that may be kept at the storage site under the licence and the date upon which the licence expires.

[45] As noted earlier, the four licences tendered in the instant case were all DPLs that authorized marijuana production at 81 Mack. Two of the four licences had expired by March 6, 2012. The two that were still in effect authorized, in total, the production of only thirty marijuana plants at the Mack address. The police seized more than 1,500 marijuana plants (including clones) from the Mack grow op on March 6, 2012. Further, and subject to the holder's "opportunity to be heard", it appears that the four DPLs issued to 81 Mack were the most that may be issued to a single production site: MMAR, ss. 63.1 and 64.

[46] The MMAR is conspicuously silent as to whether the "holder" of a DPL may delegate or assign his or her authorization to produce, possess and keep marijuana (as set out in s. 34(1)) to agents or employees. The language of the provision suggests that the scope of the exemptions granted by the authorization extends no further than the holder of the licence. This interpretation is consistent with the general tenor of the MMAR which, by way of example, expressly addresses the narrow circumstances in which someone may assist in the administration of marijuana to a person issued an ATP without themselves courting criminal liability: s. 23. Such construction is also reinforced by provisions that tightly restrict eligibility for DPLs and require applicants to make extensive disclosure of their personal circumstances, co-ordinates and backgrounds, including any adult criminal record for designated drug offences during the preceding ten years.

[47] By way of contrast, the MMAR simply does not speak to applications from or the qualifications or licensing of employees. Nor is there any requirement that even the names of staff members, let alone their addresses or biographical information, be provided to Health Canada. Further, DPL applications "may not be made jointly with another person": s. 37(3). One provision alone, s. 61(1), may arguably be read as contemplating the involvement of others than the DPL holder in the operation of a production site, but then only with respect to security concerns. It reads: "The holder of … a licence to produce shall maintain measures necessary to ensure the security of the marihuana in their possession". This regulatory obligation to maintain necessary security measures may explain the earlier-noted distinction drawn by DC Karstoff between peripheral or incidental services, such as security and maintenance, that, in his view, could be contracted out and, on the other hand, the core production responsibilities related directly to the cultivation of marijuana that, he testified, could be lawfully performed by only the production licence holder.

[48] Karstoff's distinction likely reflects a practical compromise adopted by those charged with enforcing a notoriously murky regime. However, this approach appears inconsistent with the MMAR's general concern to closely scrutinize and license all participants in the medical marijuana program so as to minimize the risk of criminal participation or leakage of the product into the recreational use community. In my view, under the MMAR security personnel are no less parties to the production of marijuana than are those employed as gardeners.

(c) Mistake of Law versus Mistake of Fact: The Governing Principles

[49] Pursuant to s. 19 of the Criminal Code, "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence" – or, in the vernacular: "ignorance of the law is no excuse". A mistake as to the law or its meaning or effect is equally unavailing. However, a mistake of fact – such as, in one frequently occurring scenario, an accused's claim that he mistakenly believed that a complainant in a sexual assault prosecution consented to intercourse – can, if premised on a genuinely held belief, afford a defence. As put in R. v. Tolson, (1889) 23 Q.B. 168, one of the seminal English cases, at 181: a "belief in the existence of circumstances, which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a good defence". To be clear, "defence" in this context is not meant to suggest that an accused bears a legal burden; it is, rather, simply a denial that the Crown has proved the requisite fault element. The nature of this "defence" was explained by Dickson J. (and endorsed by the majority) in R. v. Pappajohn, [1980] 2 S.C.R. 120, at 148:

Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and nonetheless commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused.

(See also: R. v. Robertson, [1987] 1 S.C.R. 918, at para. 28.) An honest mistake as to a matter of mixed fact and law is equally exculpatory: R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547; R. v. Latouche, infra, at para. 43; R. v. Manuel, 2008 BCCA 143, 231 C.C.C. (3d) 468.

[50] I leave to others (and there have been many) the explication of the policy rationales for the different legal treatment of mistakes of law from those of fact. The settled analytical distinction between the two is readily articulated. As summarized by the Court of Appeal in R. v. Stucky, 2009 ONCA 151, 240 C.C.C. (3d) 141, at paras. 110-111:

In R. v. Latouche, 190 D.L.R. (4th) 73, at para. 35, Ewaschuk J.A., citing R. v. Jones, [1991] 3 S.C.R. 110, described the distinction between a mistake of fact and a mistake of law in this way:

As a general rule, a mistake of fact, which includes ignorance of fact, exists when an accused is mistaken in his belief that certain facts exist when they do not, or that certain facts do not exist when they do. Ignorance of fact exists when an accused has no knowledge of a matter and no actual belief or suspicion as to the true state of the matter. By contrast, a mistake of law exists when the mistake relates not to the actual facts but rather to their legal effect.

Professor Don Stuart explains the distinction in a similar fashion in Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Carswell, 2007), at p. 366:

A mistake of fact is said to occur when the accused is mistaken in his belief that facts exist when they do not, or that they do not exist when they do. On the other hand, a mistake of law is said to occur when the mistake is not as to the actual facts but rather as to their legal relevance, consequence or significance.

To prevail, a mistake of fact need be found honestly held, at least with respect to those offences that require intention or a subjective awareness of the prohibited circumstances. In such cases, the reasonableness of the belief, like factors personal to the defendant, weigh in the assessment of the genuineness of the mistaken belief but is not a condition precedent to its validity: R. v. Pappajohn, supra, at 124-126 and 131-132; R. v. Sansregret, [1985] 1 S.C.R. 570, at para. 15; R. v. Seaboyer, 66 C.C.C. (3d) 321, at 393 (S.C.C.).

[51] Despite the near-heroic efforts of jurists and textbook writers to cleanly distinguish mistakes of fact from those of law, the boundaries of each remain a matter of continuing controversy, most particularly in the application of each doctrine. In the 6th and most recent edition of his treatise on Canadian Criminal Law (Carswell, 2011), Professor Don Stuart rightly cautions, at p. 381, that the neat definitions of courts and scholars,

easily distinguish … a mistake as to whether a gun was loaded (mistake of fact) from a mistake that pointing a loaded gun is not an offence (mistake of law). However, they by no means resolve the difficult cases, however intricate the attempt to qualify them.

Thankfully, this case does not lie at the especially difficult end of the spectrum.

(d) Applying the Law

[52] The defendant concedes the actus reus of the offences with which he is charged: He was a knowing party to the production of the marijuana found at the 81 Mack grow op. He was also a party to its possession for, indisputably, the purpose of "trafficking" (as defined in sub-s. 2(1) of the CDSA). He says, however, that based on the production licences and related documentation at the grow op and information received from his employers, he honestly believed the production and related possession of marijuana at the 81 Mack site (and, not incidentally, his limited participation in such enterprise) was officially authorized and that any mistake he may have suffered in this regard was one of fact or mixed fact and law that negatives the element of moral blameworthiness and thus exempts him from criminal culpability. In response, the Crown's first position is that the defendant was not mistaken; he knew full well that the vast majority of the marijuana production at 81 Mack was outside the scope of any licensure and hid behind those licences in fraudulently advancing a defence of mistake. In the alternative, the Crown submits the defendant, if honestly mistaken, was not mistaken as to the facts but as to their meaning or consequence in law. In either event, says the Crown, the defendant is guilty as charged.

[53] At the risk of abbreviating the suspense, I find myself in agreement with the Crown's alternative position. To be more precise, I am not persuaded that the defendant did not honestly if mistakenly believe that the marijuana cultivation at the 81 Mack grow op was authorized by production licences issued by Health Canada. However, I find that this belief amounts to a mistake of law and, accordingly, does not exculpate the defendant from responsibility for the two offences before me.

[54] I acknowledge that the defendant's account is not free of inconsistencies, improbabilities and evasions. It is, for example, difficult to credit the defendant's claims that he worked on spec and without pay for some two or three months, that he was hired to work a security detail at a multi-million dollar enterprise without any related training or experience, that he did not know the last name or phone number of the man who hired him, that his employee access to the grow op was by way of a key hidden in the grass, that he had left valuable personal items like his iPad unattended at the site for a week, and that he casually used the premises as a rent-free motel after a fight with his spouse. The defendant's evidence as to the number of occasions he had worked at the site dropped by half between his police interview and his appearance in the witness box. He withheld the name of at least one other grow op employee during his police interview. His evidence as to when he learned Vincent's last name was somewhat elastic. His explanation for his amended evidence as to the source of his cellphone ringing during the course of his police interrogation – an alarm reminder to water the plants v. a call from his wife – was, I find, less than convincing.

[55] I am satisfied that the defendant, as he realized a police lasso was tightening about his neck, moved to minimize his participation and protect, out of fear or some more benign basis for fidelity, others involved in the operation of the grow op. The question, however, remains: fact or law aside, is there an evidentiary foundation for the defendant's claim that he honestly believed he was exempt from the criminal law prohibitions of the production and possession of cannabis? Or, more precisely: is the evidence bearing on this question such as to warrant it being left to a trier of fact? (Or further still, and expressed in the language of evidentiary burdens: does the defendant's claim have an "air of reality"?)

[56] In my view, the answer to this question, however framed, is 'yes'. The defendant called 911 upon discovering the break-in at 81 Mack. He waited for the police to attend. He directed them to the suspects and their truck. He waited for the police to return. He voluntarily attended with the police to further assist in their investigation. He offered to further assist the following day.

[57] The defendant's utterances and demeanour on March 6th are as consistent as his conduct with his belief in his own innocence: He advises the 911-operator that the burglary is in a legal marijuana factory. He provides his name and date of birth without hesitation and, minutes later, his driver's licence and cellphone number to the police. He volunteers to the first officers on the scene that he had been watering the plants. Relying on the licences and police documents at 81 Mack, he repeatedly re-asserts the "legal"-ity of the grow op in his police interview. He declines access to counsel and appears genuinely shocked to learn that he is a subject of criminal suspicion. He elected to testify, and although shaken in cross-examination he did not waiver from his core assertion of belief in his exemption from criminal liability and his basis for this belief.

[58] In short, I am satisfied that there is a realistic basis to conclude that the defendant's conviction in his immunity from criminal exposure, however mistaken, was honestly held. As said by Wilson J. on behalf of a unanimous Supreme Court in R. v. Robertson, supra, at para. 30, "if there is sufficient evidence to put the issue before the jury, then the Crown has the burden of proving beyond a reasonable doubt that the accused did not have an honest belief" as to, here, his immunity to prosecution for production and possession of marijuana. In my view, there is here "sufficient evidence" and the Crown has not met its consequent burden.

[59] I acknowledge a fundamental structural flaw in the preceding analysis. As I ultimately conclude that the defendant's mistake was one of law rather than fact, then irrespective of its integrity the defence of mistaken perception ought never to have been left to a trier's consideration. (See, for example, R. v. Klundert, 2008 ONCA 767, 238 C.C.C. (3d) 6, esp. at para. 22 (Ont. C.A.)) However, the same analysis, in my view, serves another purpose, one that focuses less on the legal or definitional divide between mistakes of law and fact and more on recognition that the belief at issue, no matter its genus, is sincerely held. Put otherwise, my conclusion as to the honesty of the defendant's claim of mistaken belief necessarily leads me to dismiss the Crown theory that he tendered such defence only to protect himself from criminal liability and, as well, the Crown's invitation to reason that the defendant was therefore not a mere night watchman but, in fact, a senior participant in a scheme to unlawfully produce vast amounts of marijuana. Other than asking me to reject the honesty of the defendant's claim of mistake and then swallow a large dollop of ancillary conjecture, there is no foundation for the Crown's assertion that the defendant was a principal in the grow op at 81 Mack. Said differently: my conclusion that the defendant may well have sincerely believed that his involvement in the production and possession of marijuana was protected by an umbrella of official exemption – even if mistaken and even if a mistake of law rather than fact – terminates, on the record before me, speculation as to his knowing involvement in a substantial criminal enterprise.

[60] One approach to determining the legally operative category of "mistake" may be by asking the basis of the belief at issue. In the instant case, the footings for the defendant's mistaken belief are uniformly sourced in law rather than fact. The defendant's evidence is that he understood that the production and possession of marijuana were criminal offences. He believed, however, that there were exceptions to this general prohibition and that he fell within them. The particular exception upon which he relied was a government-sponsored program (the MMAR) that issued licences authorizing the production of marijuana for medical purposes. Vincent his employer, had assured him that the grow op was "legal" and that he, the defendant, was protected by the same authorization. Any residual doubts the defendant may have had about the existence or legitimacy of this program or its application to the grow op at which he worked were erased, as he explained in his interview and testimony, by his attendance at the CCMC storefront and, most importantly, by the licences he inspected on the wall at 81 Mack. Further, in the case of any serious trouble he was instructed to call the police and show them these very licences.

[61] The difficulty for the defendant is that his understanding of the compass of exemption extended by the licences was not only mistaken but, as said in R. v. Stucky, supra, amounts to that mistake of law that occurs "when the mistake is not as to the actual facts but rather as to their legal relevance, consequence or significance". There is no doubt that there were MMAR production licences on the wall at the grow op, but their effect or meaning was very different than the broad scope of exemption mistakenly ascribed to them by the defendant. Contrary to his apparent belief, DPLs are issued to persons not places. They authorize (or did, when the MMAR was still in effect) named persons to produce marijuana, and only at a particularized location, but they do not afford a freestanding get-out-of-jail-free card to anyone assisting in the cultivation of marijuana within the confines of the specified address. The defendant's mistaken belief in this regard was one of law. So too was his apparent ignorance that he could not possess or aid and abet others (even those holding DPLs) to possess or produce marijuana unless he himself was issued an ATP. The defendant's mistaken belief that the licences' expiry dates and maximal plant limits were of little consequence again resounds in law, not fact. And the assurances of legality he received from Vincent, while perhaps personally persuasive, are of no exculpatory value in this context. The Canadian authorities have consistently held that even the mistaken advice of a lawyer, honestly tendered and believed, is of legal rather than factual character. As succinctly put in R. v. Stucky, supra, at para. 109, "there can be no doubt that reliance on a lawyer's advice is a mistake of law which affords no defence to the commission of an offence".

[62] The defendant's misapprehension is materially no different than that of a motorist who argues on arrest that he mistakenly believed that his G1 licence authorized him to drive on a 400-series highway after midnight and without a qualified passenger. Irrespective of the source of his misunderstanding (unless resulting from officially induced error) and no matter how sincerely held, the driver's misapprehension (indeed, any of the three) is not a mistake of fact but law. The defendant's mistake is of the same analytical character and, accordingly, does not afford him a defence.

D. CONCLUSION

[63] For the foregoing reasons, I find the defendant guilty of the two charges upon which he was arraigned: production of marijuana and possession of the drug for the purpose of trafficking.

[64] I add only that I am painfully aware that I could much more swiftly have reached the same result by first determining the dispositive mistake-of-law character of the defendant's belief, and by then declining to assess the sincerity of that belief on the premise that this latter exercise was no longer necessary in view of my finding of guilt on the alternative basis. I have endeavoured to address both the argument as to the proper legal classification of the defendant's belief and the honesty with which it is held for two reasons: first, to afford a comprehensive set of findings lest any review is entertained; and, second and most importantly, to provide a factual platform for the sentencing hearing that inevitably follows this decision.

Released on January 22, 2015

Justice Melvyn Green

R. v. Xue Tan Zheng, 2015 ONCJ 30

Case Summary