Court File and Parties

Court File No.: 14-402

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

John Rowe

Before: Justice Robert S. Gee

Heard on: December 1, 2015

Reasons for Judgment Released: January 13, 2016

Counsel:

• A. Burns, for the Federal Crown
• D. Henderson, for the Accused

Introduction

[1] In November 2013 a person who rented a storage unit at Tottle Mini Storage located at 388 County Road 18, in Brant County Ontario, reported to police that a strong odour of marijuana could be detected coming from one of the nearby units. Police investigated and on November 13, 2013 obtained a search warrant for unit 2048. They entered and found 173 bags of marijuana weighing 40,890 grams or almost 41 kilograms. For those of us who still lack an appreciation of metric weights and measures, that is the equivalent to just over 90 pounds of marijuana.

[2] The accused, John Rowe, was observed on video surveillance putting the marijuana in the unit. He was also identified as the person who attended Tottle Mini Storage on November 5, 2013 and rented the unit in question. On that day he paid $68.56 in cash and advised that he was renting the unit on behalf of a "Ken Jackson" and that "Ken Jackson" would attend at a later date to fill out the necessary paperwork.

[3] At the time, the accused provided neither photo identification nor any phone number or other contact information, notwithstanding it was the policy of Tottle Mini Storage, to require such. Sometime after the police executed the search warrant, the accused was arrested and charged with Possession for the Purpose of Trafficking, contrary to s. 5(2) of the CDSA.

[4] At all relevant times the accused had two Health Canada issued marijuana production licences that, combined, allowed him to grow 176 plants and to possess 7920 grams, or approximately 17.5 pounds of marijuana, at his residence. His residence at the time was 28 Greenwood Trail in Brantford. He was not authorized by the licences to store marijuana at Tottle Mini Storage. As well at the time, the accused had an Authorization to possess dried marijuana. This Authorization allowed him to possess 450 grams or 1 pound of dried marijuana.

[5] The 173 bags of marijuana each weighed between 232.5 grams and 246.5 grams, or about a half pound each. Some of the bags were stored in 5 gallon pails that were then closed and sealed with duct tape. Others were stored in a tote that was also sealed with duct tape. Each individual bag had been labeled in handwriting with the words, Diesel, Thunder, BMW, Hope AK47 or Juicy Fruit.

[6] An expert witness called by the Crown estimated the street value of the marijuana to be approximately $120,000.00 to $225,000.00. This witness also opined that this quantity of marijuana, if being kept by someone for personal use, and smoking it at the rate of 5 joints per day, would last for 67 years.

[7] The accused has testified he had no intention of trafficking. He was growing the marijuana on his property near Simcoe, Ontario, and this had been his first crop. Notwithstanding his novice status as a marijuana producer, his first crop was a bumper one, which yielded far more product than he anticipated. Additionally, two other persons with licences to grow marijuana were utilizing the accused's property to grow their marijuana.

[8] Another licenced marijuana grower, who resided near to the accused, had told the accused of an event in late October 2013, where he had thwarted an attempted robbery of his crop, indicating at least one of the would-be thieves may have been armed with some sort of weapon. Furthermore the accused states he was advised persons had been seen peering over the fence into his grow operation at about that same time.

[9] Given this state of affairs, he did not feel it was safe to keep the marijuana at his property, nor did he feel it would be safe to store it at his home in Brantford. As such, he took it to the storage facility, where it was found. His plan was to leave it there only as long as necessary to sort out what to do with it.

[10] He knew this amount was far in excess what he was lawfully permitted to possess but he was averse to the thought of simply destroying it when it could be of assistance to others, like him, who needed it for medical purposes. His intention was to seek out the advice of Health Canada and to follow the direction he received.

[11] In this regard, starting at harvest time in late October 2013, the accused testified he made three calls to Health Canada for direction. The first and second calls were made within days of each other, around the time of the attempted robbery at the neighbour's, and both were made after business hours. Since they were both after hours, the accused never spoke to anyone on these occasions, getting recordings both times but leaving no messages.

The third call was made during business hours and the accused spoke to someone but did not ask her name. This person told him he could not give away or sell the marijuana. This is as far as his conversations went with Health Canada as he hung up when the person asked for his name, and he never called or contacted them again.

Legal Principles

[12] At trial, an agreed statement of facts was filed that set out how the police discovered the marijuana, the manner in which the storage unit was rented by the accused, the manner in which the marijuana was stored and the nature of the Licences and Authorizations held by the accused. The only other evidence presented by the Crown was through Geoffrey Brazeau the expert who testified that given the quantity of marijuana and the circumstances in which it was found and packaged, it was being possessed by the accused for the purpose of trafficking.

[13] For the defence, in addition to the accused, his niece Jennifer Collett, a self-identified medical marijuana expert, testified, as did James Willbanks, the nearby neighbour who was nearly robbed of his crop. The court also heard from John Steane, the cousin of the accused's spouse, who assisted him at his grow operation and who was present when Mr. Willbanks spoke to the accused about the attempted robbery.

[14] On its face, given the amount of marijuana, the circumstances under which it was found, the manner in which it was packaged and the evidence of the Crown expert, absent the explanation from the accused, the Crown's case is overwhelming.

[15] This case hinges on whether I believe the testimony of the accused and his witnesses or, even if I do not believe their testimony, whether I am still left with a reasonable doubt.

[16] If believed, the accused's explanation that he wanted to dispose of the excess marijuana in a manner consistent with the Licences and Authorizations he possessed, or in a manner directed by Health Canada, would mean he had no intention to traffic in it.

[17] Assessing the credibility of witnesses could well be the most difficult task for a judge. Reaching a conclusion whether a witness is believed or not is perhaps the easy part of that task; articulating why is much more difficult. Gone are the days when a judge can pronounce his or her conclusion without explanation. The days when a judge could simply state a witness' testimony had or lacked a "ring of truth" are over.

[18] However when articulating the basis for assessing a witnesses' credibility some factors bear keeping in mind. The presence or absence of objective factors such as, inconsistencies, motive to lie, opportunities to collaborate, bias, etc., are not necessarily determinative. The absence of objective factors such as these that could negatively impact on a witness' believability, does not by their mere absence, require a finding the witness must be telling the truth.

[19] The testimony of any witness is also assessed based on logic, common sense, and the accumulation of human experience. Even if a witness' testimony lacks any objective basis for rejection it is still capable of being rejected if it lacks common sense, logic, or fails to accord with human experience. (See: R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180 at par. 31 to 34; and R. v. Morgan, [2011] O.J. No. 3850 at par. 9.)

[20] This was perhaps expressed best by Justice O'Halloran of the British Columbia Court of Appeal in the case of R. v. Pressley, 94 C.C.C. 29 at par 12 where it was stated:

…The judge is not given a divine insight into the hearts and minds of the witnesses appearing before him. Justice does not descend automatically upon the best actor in the witness-box. The most satisfactory judicial test of truth lies in its harmony or lack of harmony with the preponderance of probabilities disclosed by the facts and circumstances in the conditions of the particular case.

Analysis

[21] In turning to the evidence in this case, and keeping these principles in mind, I start by saying that I do not believe the evidence of the accused. The real crux of this case is notwithstanding that I do not believe him, whether his evidence still leaves me with a reasonable doubt. After considering all the evidence and the circumstances of the case, I find, for the reasons that follow, that it does not.

[22] I find that the testimony of the accused and his explanation for his actions in this matter simply defy common sense, logic, and is contrary to human experience, and it is for these reasons and not for any inconsistencies, bias or other objective reason, that I reject it.

[23] I start with the amount of marijuana the accused had in his possession. He was authorized to possess 1 pound of dried marijuana. He had 90 pounds. That is 90 times the amount of dried marijuana he was authorized to possess, and over 5 times the amount of all forms of marijuana he was authorized to possess.

[24] This was not a slight overage. It would have been obvious from early on in the growing process that he was going to be over his limit. He admitted as much in his testimony. He stated it was unbelievable the size that the plants were growing.

Common sense would dictate that it would be logical for a person who found themselves in this situation to take some steps to prevent exceeding his legally permissible limits or to at least seek advice about this eventuality. The accused could have, earlier in the process, either cut or destroyed some of the plants before maturity, or at that time sought the advice of Health Canada. He did neither.

[25] He stated he was not sure how much usable marijuana he would get from each plant notwithstanding their growth rate as they had not flowered or budded yet. That explanation as well does not make sense. He was aware of the parameters of his licences. He knew he was only entitled to possess 7920 grams, or approximately 17 pounds of marijuana, in any form. Given the amount he ended up with, and the rate at which he testified the plants were growing, it would have been obvious early on he was exceeding this limit.

[26] Not taking any steps to address this problem until the inevitable happened at harvest time, does not make sense.

[27] Even the steps he claims to have taken to deal with the problem defy logic. He says he consulted with his niece who was well versed in this area. Her advice was to call Health Canada. He states he did but as mentioned, not until late in the process at harvest time, when it was blatantly obvious he was well over his allowable amounts.

[28] Human experience tells me if I call a government office after business hours, I should not expect to speak to anyone. Even if this was something I was unaware of, after doing it the first time and getting a recorded message, I would not call again after hours and expect a different result. Yet this is what the accused would have me believe he did.

[29] Then on his third call to Health Canada, during business hours when he spoke to someone, he did not bother getting the name of the person he spoke to, nor would he give his name, and in fact, hung up when asked.

[30] Common sense again comes into play here. He knows that generally, it is unlawful to possess marijuana. It can only be lawfully possessed if licenced and authorized by Health Canada. He obtained such Licences and Authorizations, which permitted him to possess a prescribed amount under prescribed circumstances. He knew possessing it in a manner not permitted by his authorizations, would be unlawful.

[31] He states he found himself in a position where unintentionally he possessed more than he was authorized. He wanted to do what was right and lawful, so he sought advice from Health Canada, the governmental authority that provided him with his authorizations to possess it.

[32] Since he knew he was exposed to criminal sanctions if caught, common sense would dictate that when seeking the advice of Health Canada, for his own protection he would want to ensure he knew who he was speaking to so he could have a means of verifying that he sought their advice and what that advice was.

[33] Additionally, common sense also dictates that if Health Canada receives an inquiry such as this, from a person they have licenced and authorized to possess marijuana, they are going to require the person identify themselves. The accused would have realized this, so to refuse to identify himself to Health Canada, does not accord with common sense.

[34] I find that these calls to Health Canada never took place. This was concocted by the accused, and was concocted in such a manner so that it was not possible to verify whether it happened. No name of the Heath Canada person was provided because to do so would give the Crown or the police the chance to verify that person existed at Heath Canada, and the accused states he did not give his name for the same reason; so it would not be possible to verify at Health Canada that he made such an inquiry.

[35] Another aspect that defies logic is the part of the testimony about the attempted robbery of the neighbour. James Willbanks stated he was at his grow location when a pick-up truck with four occupants and another smaller car came speeding onto the property. He was unsure how many were in the car, but was sure one of them had a weapon.

[36] Mr. Willbanks testified the persons never got out of their vehicles as they noticed there were approximately 10 people there, including Mr. Willbanks. Upon noticing this, they reversed, turned around and sped out.

[37] Mr. Willbanks stated shortly thereafter he went to the accused's place to let him know about this. He also wanted to tell him he had been told someone saw a person peering over the fence into the accused's grow operation. Although Mr. Willbanks did not testify as to the nature of the weapon he saw, John Steane testified that he was present at the conversation when the accused was advised about the incident, and at that time the weapon was described as a gun.

[38] Mr. Willbanks stated he never contacted the police about this. He stated he never thought of it at the time. At best he said the owner of the farm where he had his grow operation had police officers as acquaintances, and he presumed he gave them a "heads up" as he described it, about the situation. The accused as well stated he never reported to the police the information he received about persons peering into his grow operation.

[39] It is this aspect that I find illogical. If someone sped onto the property where Mr. Willbanks was legally growing his marijuana, to steal the crop, with a weapon that was perhaps a gun, the first thing any rational person would do is call the police. The same applies to the accused. If he heard this attempted robbery story and then was told people were peering into his grow operation, common sense tells me the police would be called. Relying on someone to give their police acquaintances a "heads up" does not, in these circumstances, accord with human experience.

[40] I find that this attempt robbery and the spying into the accused's property were also concoctions, designed and presented in a manner to be unverifiable.

[41] I also find the manner in which the excess 90 pounds of marijuana was packaged and stored does not make sense. Why bother packaging it in half pound parcels, labelling it and then further sealing it inside 5 gallon pails or totes. At best, the accused's plan was to turn the excess over to Health Canada, or donate it at their direction, or, in a worst case scenario, to destroy it.

[42] This would have been a lot of time and effort for no apparent purpose. If the accused did not want to mix the various varieties of marijuana it would have been much easier to simply put it into six separate packages, one for each type, than it was to package it into 173 separate bags.

[43] A final aspect of the accused's version that makes little sense is the manner in which he rented the storage unit. He stated he was worried if he rented the unit in his own name, there was a risk it could leave him susceptible to the theft of the marijuana. He feared anyone who found out he stored it there may ask at the office which unit was his and they would be told. In order to combat this he came up with the story of renting it on behalf of Ken Jackson, a friend from out east, who was going to be moving here and needed a place to store his belongings.

[44] He testified there was no attempt at subterfuge as he knew the manager whom he dealt with in renting the unit and who was coincidentally, a neighbour of his. Given this, according to the accused, there was no attempt to conceal his identity from Tottle Mini Storage, only from persons who may have wanted to steal the marijuana.

[45] However this makes little sense. I would be surprised if a mini storage place, such as this, would provide the name of the unit holders to strangers simply by being asked. But if the mini storage operators were so inclined, it seems to me the accused's scheme would not help him. Since this was the only unit at Tottle Mini Storage the accused had any connection to and since the manager knew him, if he were inclined to give out this information chances are he would give the person making the inquiry the number for this particular unit, since it is the only unit the accused had any connection to.

[46] Furthermore, on the evidence presented, it seems one would not even need to know the number of the unit the accused was renting to locate where the marijuana was stored. All one needed was an average sense of smell. It seems within days of placing the marijuana in the unit, a person renting a nearby unit had phoned police and advised them they could detect the strong odour of marijuana emanating from the accused's unit. The police, when they investigated, confirmed as well the odour of marijuana could be detected coming from the unit.

[47] This odour would also account for why the accused packaged the marijuana as he did, inside plastic bags, then inside pails or totes, then those pails or totes sealed with duct tape. This was designed to try to limit the odour, but to no avail.

[48] Given all this, I find the reason the accused tried to shield his identity as the renter of the unit was not to conceal it from bad guys who would want to steal the marijuana, but to conceal it from the police, in case the marijuana was discovered.

Conclusion

[49] It is for these reasons that I conclude the accused's explanation has run aground on the shores of common sense, logic and human experience. I do not believe his explanation for the foregoing reasons, nor am I left with a reasonable doubt.

[50] As mentioned at the start, absent an accepted explanation from the accused, the Crown case is overwhelming. Given the amount of marijuana found here, the circumstances under which it was found, the manner in which it was packaged and given the testimony of Geoffrey Brazeau, the expert called by the Crown that the marijuana was possessed as it was for the purpose of trafficking, I am satisfied beyond a reasonable doubt the Crown has proven its case and accordingly the accused will be found guilty as charged.

Dated at Brantford, Ontario

This 13th day of January, 2016

The Honourable Mr. Justice R.S. Gee