Court Information

Date: October 25, 2016

File No.: 2811 998 13 13585 01

Ontario Court of Justice

Her Majesty the Queen

v.

Brent Crawford

Reasons for Judgment and Sentence

Before the Honourable Mr. Justice M.S. Felix

On Tuesday, October 25, 2016

At Oshawa, Ontario

Appearances

G. Raven – Counsel for Federal Crown

C. Claxton – Counsel for Brent Crawford

Table of Contents

• Guilty Plea
• Procedural Delay
• Disposition of the Constitutional Challenge Issue
• Trial of an Issue – Gardiner Hearing
• Trial of an Issue - Introduction
• Burden of Proof
• The Applicability of R. v. W.D.
• Circumstantial Evidence
• Organization of this Judgment
• Objective Conclusions: Marijuana Production and the Evidence Seized
• Federal Prosecutor's Position
• Defendant's Position
• The Marijuana Production Facilities
• The Marijuana Production Facility - Expert Evidence
• Two-Stage versus Three Stage Production
• The Defendant's Legal Marijuana Production
• Possession of Marijuana Plants
• Possession of Dried Marijuana
• "Abandoned" Marijuana Plants Outdoors
• Conclusion
• Quantum of Drugs and the Issue of Trafficking
• Baking with Marijuana
• Hash in the Mason Jar
• Calendar Entry: "Feed The Clones"
• Male / Female Plants
• Conclusion
• Section 16 of the Controlled Drugs and Substances Act: Disposition of the Money Seized
• Sentencing
• Categorizing the Trafficker
• Background of the Offender
• Mitigation
• Factors neither Mitigating Nor Aggravating
• Aggravating Factors
• Conditional Sentence
• Conclusion
• Sentence

Reasons for Judgment

FELIX, J. (Orally)

Guilty Plea

On November 13, 2015, the defendant pled guilty to the indictable offence of Production of a Schedule II substance, contrary to Section 7(2)(b) of the Controlled Drugs and Substances Act (C.D.S.A.) and possession of marijuana for the purpose of trafficking, contrary to section 5(3)(a) of the C.D.S.A.

The police executed a search warrant concerning his rural residence in August of 2013. The following material items were seized:

• 147 marijuana plants in an indoor location - a detached garage
• 87 marijuana plants outside the property
• 45 grams of hashish
• 4,935 grams of dried marijuana
• An assortment of items used in the production of marijuana

At the time of the guilty plea, the parties requested an adjournment of sentencing so that two issues could be litigated.

The defendant did not concede that he possessed or produced marijuana for the purpose of trafficking and asserted that the prosecution must prove this issue. I should note the federal prosecutor (not the prosecutor who addressed the guilty plea) and defence counsel later requested the Court reserve a finding concerning count two pending the determination of trafficking as this was obviously the intention of the parties. The defendant also indicated that a constitutional challenge to the imposition of a mandatory minimum sentence would be brought.

The federal prosecutor wished the opportunity to call evidence to establish the aggravating factor of production for the purpose of trafficking which would trigger a minimum sentence per Section 7(2)(b)(ii) of the C.D.S.A.

Procedural Delay

Sentencing was adjourned for several months to permit the constitutional challenge to be brought and to allow the parties to prepare for the trial of an issue concerning "for the purpose of trafficking".

The defendant gave notice that a Charter constitutional challenge to the minimum sentence applicable would be filed within 60 days of November 13, 2015.

Two days were set aside for the application: May 12th and 13th, 2016.

Disposition of the Constitutional Challenge Issue

The Charter institutional challenge was not filed by counsel for the defendant within the 60 days stipulated by counsel.

Further, the application was not filed on or by the continuation date of May 12, 2016.

In separate oral reasons provided on May 12, 2015, I dismissed an application for an adjournment brought by defence counsel for the purpose of filing the Charter constitutional challenge. I granted an adjournment for the remainder of May 12, 2016 and directed that this matter would proceed to sentencing on May 13, 2016.

The Court nevertheless invited submissions concerning the applicability of the minimum sentence for two reasons. First, because the federal prosecutor sought the imposition of a minimum sentence pursuant to Section 7(2)(b) of the C.D.S.A. Second, because sub-sections 7(2)(b)(i) and (ii) of the C.D.S.A. had been declared unconstitutional by Durno, J. in R. v. Vu: See R. v. Vu, 2015 ONSC 5834 at para 267; R. v. Vu, 2015 ONSC 7965 at para 49.

The Court expressed a preliminary view that the declaration of invalidity made by Durno, J. should be accepted by this Court: (See the reasoning in R. v. Scarlett, 2013 ONSC 562 at paras 34 - 44). The Court received submissions from both parties.

The federal prosecutor subsequently gave notice that he no longer wished to insist on the imposition of the mandatory minimum and did not wish to litigate the issue further.

I am aware that Vu is currently on appeal before the Ontario Court of Appeal. Nonetheless, I am of the view that Mr. Justice Durno's declaration of invalidity applies per Scarlett, supra. Subsequent to argument on this issue I note that Code, J. came to the same conclusion in R. v. Pham, [2016] O.J. No. 4564 (ONSC).

I believe that I should sentence the defendant in accordance with overarching principles of sentencing without resort to the mandatory minimum sentence.

Trial of an Issue - Gardiner Hearing

Trial of an Issue - Introduction

The federal prosecutor seeks to prove beyond a reasonable doubt that the defendant possessed marijuana and produced marijuana for the purpose of trafficking as an aggravating factor on sentence. While the prosecution no longer relies on the mandatory minimum sentence, it is asserted that there is an overwhelming body of evidence to support a finding that the defendant was trafficking. The prosecution submits that this is an aggravating factor and seeks a sentence of nine months incarceration and ancillary orders.

The prosecution rests this position on the facts admitted in support of the guilty plea, the evidence adduced during the sentencing hearing, an expert opinion from a police officer, and credibility findings urged upon the Court given the testimony of the defendant.

The defence position is that the prosecution has not proven that the defendant was trafficking beyond a reasonable doubt. The quantum of drugs was not such that it should give rise to an inference of trafficking. There is insufficient foundation to support a finding that the defendant possessed or produced marijuana for the purpose of trafficking.

The defendant submits that a conditional sentence is appropriate if the Court finds that it is satisfied that the amount of marijuana possessed or produced is less than three kilograms. In the alternative, if a non-custodial sentence is inappropriate, the defendant submits that a 30 day sentence would be appropriate.

There are a multitude of issues that the Court must address given the manner in which the parties approached this sentencing. I do not propose to repeat the several days of evidence on this sentencing. But I must canvass and address the numerous issues raised by counsel during this sentencing.

Burden of Proof

On his guilty plea, the defendant accepted that he both possessed marijuana and produced marijuana. He did not admit that he was trafficking.

As such, to be crystal clear, the federal prosecutor bears the burden of proof to prove beyond a reasonable doubt that the admitted possession and/or production was for the purpose of trafficking.

The Applicability of R. v. W.D.

The defendant adduced evidence during the sentencing hearing in addition to his viva voce evidence. As such, the principles outlined by the Supreme Court of Canada in R. v. W.D., [1991] 1 S.C.R. 742 apply to my credibility findings.

Circumstantial Evidence

There is no direct evidence that the defendant trafficked the marijuana he admittedly possessed and produced.

The prosecution urges the Court to draw a reasonable inference that the defendant was trafficking based on three areas of evidence including:

1. The evidence that was seized and the set-up of the production facilities;

2. The quantum and variety of illegal product seized; and

3. Credibility findings against the defendant.

No special self-instruction concerning circumstantial evidence is required in law. However, when assessing the inference of trafficking urged upon the Court, if there are reasonable alternative inferences available, the prosecution has not proven this fact beyond a reasonable doubt. The Court is obliged to consider other reasonable possibilities inconsistent with guilt: R. v. Villaroman, 2016 SCC 33; R. v. Griffin, 2009 SCC 28.

Organization of this Judgment

Prior to addressing the sentence in this case, I must resolve the "trial of an issue" - has the prosecution proved beyond a reasonable doubt that the defendant possessed and/or produced for the purpose of trafficking?

The resolution of the trial of an issue will be resolved by consideration of two larger issues:

1. The objective conclusions reached concerning the set-up of the marijuana production operation and the evidence seized; and,

2. The quantum and types of drugs seized.

Objective Conclusions: Marijuana Production and the Evidence Seized

Federal Prosecutor's Position

The federal prosecutor cites the set-up of the production premises, the ancillary items found within, the volume of seized drugs, and the opinion of the police expert in support of a conclusion that the defendant possessed and produced marijuana for the purpose of trafficking.

The prosecution submits that the defendant was engaged in a three-stage grow operation. The presence and volume of numerous items documented in the exhibit report are instruments of trafficking. A substantial investment was made in the physical plant. The number of marijuana plants seized and the potential yield from this three-stage marijuana production facility supports the inference of trafficking. Finally, the prosecution submits that the defendant's testimony at this hearing supports adverse credibility findings against him.

Defendant's Position

The defendant admits that he possessed and produced marijuana. The defence position is that he was engaged in a two-stage marijuana operation not a three-stage operation and that this has an impact on the potential yield.

The defendant further presented evidence that he was an authorized marijuana producer in the past and this explains his possession of numerous items ancillary to the production of marijuana.

The defendant testified that the marijuana plants he cultivated were solely for personal consumption by smoking and indirect ingestion.

The Marijuana Production Facilities

The defendant produced marijuana on his rural residential property. The plants were contained in a barn on his property. He also produced marijuana outdoors on the premises.

I have a good appreciation of the scope of the operation and the circumstances due to the able assistance and the efforts of counsel and the evidence received on this sentencing. The highlights of this evidence include the expert opinion evidence of the police witness, the evidence of the defendant, the exhibit log, photographs, and videos. I will not detail the minutiae of this evidence. For the purpose of sentencing, a survey will suffice.

There is no dispute that the police seized a large number of marijuana plants on the property. The first and second page of the police expert report documents the variety of items seized including:

• A total of 147 marijuana plants indoors
• A total of 87 marijuana plants outdoors
• 45 grams of hashish
• 4,935 grams of dried marijuana in zip lock bags with various "brand" names of marijuana within a garbage bag

Ordinarily, this volume of drugs, the scale of the production facilities, and the volume of ancillary instruments used to produce marijuana might immediately support an inference of trafficking.

But this case is complicated by an unusual fact - the defendant was authorized by Health Canada to produce marijuana before (and perhaps surprisingly after) the execution of the search warrant and being charged with these offences.

This means that the volume of drugs, the scale of the production facility, and the volume of ancillary instruments used to produce marijuana may also provide support for the defendant's position.

The Marijuana Production Facility - Expert Evidence

The police witness was qualified to provide expert opinion evidence concerning the production, distribution and sale of marijuana including the yields of the plant, growing cycles, production equipment, indicia of possession for the purpose, and personal use of marijuana. His report and Curriculum Vitae filed as exhibits bear witness to his experience in the area.

Once again, I will not recount the details in the report, but I will address issues that are relevant to issues of weight. When I say "weight," I mean how much reliance I should have on the report.

In summary, the expert opinion evidence is founded upon a review of the exhibit report and the typed police synopses generated by the investigators. Of note, the police expert did not:

1. Attend the scene of the search warrant;

2. Examine the premises or personally review the set-up of the indoor facility;

3. Examine any of the seized marijuana plants;

4. Conduct any testing of the soil; or

5. Examine photographs or recorded footage of the scene.

The Court was not presented with any explanation for this approach, but one might reasonably infer that this approach signals an effort on the part of the police to ensure that the expert is somewhat removed from the actual investigation thereby potentially supporting his objectivity.

The police witness Constable Paul MacIntosh - I found him to be worthy of the concession that he was an expert in the area. While his expertise and qualifications were conceded by the defendant, I am nevertheless mindful of my gate keeping function (see R. v. Sekhon, 2014 SCC 15). Police Constable MacIntosh was balanced and extremely careful with his evidence. He self-regulated his evidence and took great pains not to overstep the parameters of his expertise.

I am satisfied that his evidence is generally admissible subject to considerations as to the appropriate weight that I will highlight.

In this case, the actual set up of the production facilities and the inferences available are an issue.

There are two main issues to resolve. The core area of dispute concerns whether the premises were a two-stage or three-stage operation and the relevance of the defendant's previous medical marijuana licensing.

Two-Stage Versus Three-Stage Production

The police expert opined that the defendant was involved in a three-stage production operation.

This is signified by three rooms and the progression in the development of the plants from seedlings to maturity. The expert did not actually examine these three rooms. He did not observe the plants. He observed photographs of the plants in the various rooms for the first time at trial.

On page two and three of the expert opinion report, the expert opined concerning the potential marijuana yield.

The police expert concluded that this three-stage operation would yield approximately 46 pounds of marijuana (he calculated 184 plants x 4 ounce yield each plant, totaling 736 ounces or 46 pounds). He assumed that each plant would produce four ounces of dry bud, that all of the plants were female, and that all of the plants would mature and be harvested.

The defendant testified that he was engaged in a two-stage operation not a three-stage operation. This would have a significant impact on yield. Based on the expert opinion, the yield for a two-stage operation would be approximately cut in half (the yield would be approximately one or two ounces, rather than four to six ounces per plant).

Using the formula outlined by the expert, the yield from a two-stage operation I find would be approximately 26 pounds (184 plants x 2 ounce yield = 368 ounces or approximately 26 pounds).

The expert testified that a heavy user of marijuana will use about two grams of marijuana bud per day. A yield of 46 pounds of marijuana would provide approximately 36 year supply of marijuana on a daily use; 26 pounds would again provide approximately half that time span.

The defendant testified that he consumed about seven grams per day. Assuming I believed this evidence, a yield of 26 pounds of marijuana would provide approximately a four year supply of personal-use marijuana.

I may accept all, part, or none of a witness's evidence. Further on in this judgment, I will provide a more fulsome analysis of the credibility of the defendant. Notwithstanding my views of the credibility of the defendant, I tend to accept the evidence of the defendant that he was engaged in a two-stage operation. The set-up of the three rooms that I have carefully examined in the indoor production could reasonably support this finding.

Determining the potential yield in this case necessitates some speculation as the plants were not fully mature. While I accept the basic premises of the expert's opinion, the foundation for his opinion is weakened somewhat by the deficiencies I have outlined above. In addition, the expert was not provided with the details of the defendant's previous authorizations to produce medical marijuana. The expert was careful to point out that he had no experience concerning medical marijuana production facilities or the habits of medical marijuana users.

I must ensure that the expert opinion remains within the confines of the expertise for which he was qualified (Sekhon, supra). The expert's opinion that this was a three-stage operation was not buttressed by his personal examination of the scene. He did not review the photos of the scene until trial. Frankly, to a degree, there is some speculation in the expert's conclusion that this was a three-stage operation.

Notwithstanding my overall view of the defendant's credibility which I will expand upon during this judgment, I think he told the truth about this issue. The objective evidence could support his position.

The culmination of these considerations leads me to find that the defendant was engaged in a two-stage operation and he used something in the range of seven grams of marijuana per day.

Only a rough value of the drugs seized can be assessed in this case.

The expert witness estimated that the street value of marijuana at the time of the investigation would have been approximately $1,800.00 to $2,500.00 per pound if sold by the pound.

The minimum values associated with the expert's calculations of yield ranged between $200,000.00 and $266,000.00 if sold by the ounce or $138,000.00 to $208,000.00 if sold by the pound.

Given my finding that the defendant engaged in a two-stage operation, my findings as to yield are considerably lower. I find that the yield was approximately $50,000.00 and $100,000.00. Much lower than that assessed by the expert witness.

The Defendant's Legal Marijuana Production

An unusual aspect of this trial is that the defendant was authorized to produce marijuana and possess marijuana for medical reasons both before and after the police investigation and search warrant in this case.

The Court was provided with information concerning the defendant's authorizations prior to the execution of the search warrant only after specific inquiry on the last day of submissions in this case. The Court enquired concerning this issue because it was a significant feature in support of the defendant's position.

Based on the information and evidence provided by defence counsel, the following record is available:

• The defendant was first authorized by Health Canada to possess marijuana on November 11, 2011 for an unknown duration of time.
• He was also licensed from March 7, 2012 to March 7, 2013.
• The search warrant was executed I believe on August 13, 2013.
• Between March 7, 2013 and the execution of the warrant, there were efforts made by the defendant to renew his licence.
• The defendant's licence was renewed on October 15, 2013 and expired March 31st, 2014.

While the record is somewhat incomplete, I credit the efforts of defence counsel on the final day of submissions and some information she provided as an officer of the Court. She was not able to obtain documentation to support all of the purported licence periods despite her efforts.

The licence renewal documentation numbers several exhibits in this trial. That documentation satisfies me that as of October 15th, 2013, the defendant was authorized to possess 49 marijuana plants indoors and he was permitted to store on his premises a maximum of 2,205 grams of dried marijuana. A second document shows that the defendant was authorized to personally possess 300 grams of dried marijuana.

As I said, defence counsel was unable to provide documentation verifying the authorizations prior to the police investigation. But both the federal prosecutor and defence counsel operated on the basis that the authorizations were reasonably similar to the October 2013 authorization. This is logical. Indeed, the defendant himself testified that his first licence permitted possession of 38 plants. It is reasonable to infer that his authorized use prior to the police investigation was more or less the same as that authorized in October 2013.

In considering this body of evidence, I have carefully reviewed the entire record before me. I found the expert opinion evidence to be of little assistance on this particular point. I agree with the submissions of defence counsel that the expert had little relevant experience in the investigation of medical marijuana production facilities and no expertise in the practices of medical marijuana users.

When I examine the record before me, the evidence it is necessary to have regard to the setup of the marijuana production facilities, the volume of drugs seized, and the ancillary instruments used in production of marijuana.

I determined to examine the objective record first.

I examined the evidence objectively with the purpose that this might provide the best opportunity for support for the defence position.

I did not want my overall credibility findings with respect to the defendant to be over-weighted in the analysis of the objective record.

There are serious concerns simply based on the objective body of evidence concerning the setup of the operation on the defendant's property. Leaving aside any issues of credibility for the time being or at least the analysis of those issues, I find the following:

1. The defendant produced and possessed quantities of marijuana plants far in excess of that which he was permitted to possess even when he was properly licenced;

2. The defendant cultivated plants outdoors - this was not permitted even when he was licenced; and,

3. The defendant possessed quantities of dried marijuana far in excess of what he was permitted to possess when he was licenced.

Possession of Marijuana Plants

I find that the defendant possessed the following marijuana plants:

1. In room number two of the barn, there were 61 small plants or seedlings and one large plant.

2. In room number two of the barn, there were 85 seedlings in small pots and trays.

3. Outside on his property just north of the garage, there were two plants.

4. Outside on his property in plot number one, there were ten plants.

5. Outside in plot number two, there were 35 seedlings and 18 plants.

6. Outside in plot number three, there were six plants.

7. Outside in plot number four, there were 16 plants.

This volume is far in excess of that for which the defendant was authorized to possess by Health Canada either prior or after the execution of the search warrant.

Further, he was never authorized to grow marijuana outdoors.

Possession of Dried Marijuana

I find that the defendant possessed the following dried marijuana:

1. In a black garbage bag in room number one of the barn, there were six zip lock bags with dried marijuana labeled A, B, C, D, E, F totaling 2,671 grams in weight.

2. In room number one on the floor, there was a yellow No Frills plastic bag with 725 grams of marijuana bud.

3. In room number one on a table, there was a plastic dish with 27 grams of dried marijuana.

4. In room number one, there was a gun locker with 45.7 grams of marijuana in three bags labeled A, B, C.

5. In room number two, I am satisfied that in a black garbage bag, there was 1,381 grams of dried marijuana. I reject the defendant's evidence that this was "shake".

6. Under the stairs in the garage, there was a blue cooler with a quantity of dried marijuana.

Once again, this volume is far in excess of that for which the defendant was authorized to possess by Health Canada either prior to or after the execution of the search warrant.

With respect to the marijuana in room one inside of the No Frills bag and the marijuana found in room number two in the black garbage bag, I reject the evidence of the defendant that these items simply contained "shake". In addressing the possession of these items, the defendant when he testified did not explain any particular reason why he would bother to keep "shake" around. He did testify that he would destroy "shake" if it was still present on the premises.

I will address the possession of hash in a moment. But at this point, suffice it to say respectfully to the gentleman, I do not believe him. When I consider his evidence on the issue of the possession of hash and I factor in as well that the police seized a Honey Bee Extractor (which is an instrument used to make hash), I do not believe the defendant when he tells me this.

Police officers, particularly those involved in drug operations, know the difference between "shake" and marijuana bud, let alone trial judges. I accept the prosecution's position that the exhibit list accurately documents the seized items.

"Abandoned" Marijuana Plants Outdoors

The defendant testified that generally the plants outdoors were abandoned to the whims of "mother nature" perhaps due to bugs or some infestation. The objective evidence would suggest otherwise.

First of all, he was never legally authorized to grow plants outdoors. Yet he "abandoned" these plants by actually taking the time to physically plant them in the ground as opposed to throwing them out or destroying them otherwise.

I have reviewed the map of the marijuana plants on the grounds and the organization of the outdoor plots that I described earlier. That organization itself is more suggestive of deliberation than mere abandonment.

Any residual doubt in my mind on this issue was resolved frankly by the defendant's testimony.

He testified that the outdoor plants were in separate plots albeit in the same general area. For example, he testified that he had ten plants along where the garden was and that he had "others near the path". The remainder were seedlings in his view. This is evidence of deliberate control over these "abandoned" plants. Why the concern to plant them in the ground? Why plant them in different plots?

The defendant was also confronted with evidence gleaned from a trail camera set up outdoors proximate to the marijuana plants and a vegetable garden. Apart from the obvious observation to the Court that it is unusual to put up trail cameras to monitor your vegetable patches, the defendant disputed the footage that he was caring for the marijuana plants by gathering water from a pond. When I reviewed once again in my chambers the trail camera footage, it is clear that the defendant is obtaining water. He suggests that the water was purely for his vegetable plot and that the marijuana plants were left to "Mother Nature". Frankly, this evidence was difficult to listen to and in no way am I relying on it as truthful.

I should briefly address for legal reasons the submission of a letter from the defendant's spouse for the purposes of sentencing. While I found the letter extremely helpful, I disregarded the potential incriminating parts of the letter that addressed the defendant growing marijuana outdoors.

Conclusion

I accept certain parts of the defence evidence and the defendant's evidence in this case.

The defendant receives some credit for admitting he possessed and produced marijuana without authorization.

I further, notwithstanding these credibility issues, accept his evidence that this was a two-stage operation and that he consumes approximately seven grams of marijuana daily which is far in excess of the norm given the expert opinion evidence in this case.

But the objective record, separate and apart from further credibility findings I will address in a moment, establishes an intermediate sized marijuana operation. The scope and scale of the operation demonstrates that he produced a volume of marijuana far in excess of his personal medical needs. His personal needs must be referable to his medical circumstances. I am entitled to assume that his medical doctor prescribed what was needed for his medical conditions.

The defendant says he was authorized to possess 38 plants prior to the police investigation. He was authorized to possess 49 plants after his licence was inexplicably renewed two months after his arrest in this matter.

He was factually in possession of 234 plants. I should note as a footnote that the Crown is prosecuting him in respect of a lower number of plants pursuant to an agreement with defence counsel, but the actual physical numbers are important.

In this way, frankly, even the medical marijuana evidence is probative of an inference that 234 plants was far in excess of his medical need. The volume of dried marijuana seized was similarly far in excess of his need.

He produced and possessed marijuana in a significantly higher amount than he was ever authorized to possess for the purposes of his medical needs.

He was producing this product when he no longer possessed a licence or authorization to do so.

I find that he cultivated plants outdoors. Again, not in accordance with any legal authorization prior or post the police investigation.

The sheer volume of the ancillary items seized and the scale of the production facilities is consistent with an intermediate sized operation.

It is absolutely critical for me to note for the record that this is not a case of an authorized medical marijuana producer having poor math skills and inadvertently going above the authorized number of plants. If this was so, even in the circumstances of a lapsed licence, the defendant would have possessed in the range of 38 to 49 plants. He would have possessed dried marijuana quantities closer to his authorized amount. While I recognize this is not purely a numbers consideration, were he close to that range, I would be concerned about his mental intent to traffic and any doubt would be resolved in his favour.

But leaving aside the credibility issues I have with his evidence, simply on the strong objective record, it is supportive of an inference that he possessed large amounts of marijuana for the purpose of trafficking.

Quantum of Drugs and the Issue of Trafficking

I have detailed earlier in this judgment that I accept the defendant's evidence that he was involved in a two-stage marijuana operation and that he used approximately seven grams of marijuana per day. Notwithstanding these conclusions, there are several features of the defendant's evidence that impact his credibility and my assessment of the quantum of drugs.

The expert testified (and his report documents) that the quantum of drugs produced by the defendant's plants would be 26,535 grams. This opinion as I have pointed out is necessarily somewhat speculative and prospective relying on certain assumptions detained in his report including a yield of four ounces of product per plant and daily consumption of two grams per person.

The defendant as I have said testified this was a two-stage operation and that he used approximately seven grams daily. He testified that sometimes he smoked up to four joints on an average workday and perhaps more if he was not working. The defendant's evidence on this point causes me some concern for several reasons.

First of all, relying on the expert's formula adjusted to address the defendant's evidence that this was a two-stage operation and he used approximately seven grams daily, as I have already pointed out, he was still in possession of a substantial amount of marijuana. The quantum would be approximately half of what the expert found - in the range of 10,432 grams. The daily use would be seven grams rather than the expert's estimate of two grams. The yield would be two ounces of product per plant. This means that the yield would be approximately enough for 1,490 days or approximately four years worth. This is substantially lower than the 36 years concluded by the expert, but it is still a large amount of product.

Second, the defendant testified that he never measured out the dose he was taking. He simply grabbed a marijuana bud, broke it, and rolled it. He did not pay any attention to the amount. His only form of measurement per se was "...just whatever I always felt comfortable with, like fit in the paper basically."

Third, I accept the expert opinion evidence that possession of large amounts of marijuana for personal use compromises quality - there is a shelf life to marijuana. There was no evidence of the defendant preserving the marijuana he produced (for example sealing with plastic or freezing).

Fourth, I accept the expert opinion that marijuana producers often distribute at the pound level. The defendant testified that he packaged his marijuana in pounds in ziploc bags just so that he would have a clear accounting of what he had cultivated from his plants. I reject this evidence as untrue. There were six ziplocked bags of marijuana weighing approximately one pound each and they were matched to "brand name tags" of marijuana. Again, this is a defendant who testified that he did not measure out his marijuana when consuming it in joint form. This is also the defendant who, as I will address in a moment, could not specify quantities when baking with marijuana.

I believe that generally the defendant was exaggerating the volume of marijuana he consumed. This was the purpose of telling me that he does not measure the amount in a joint for example. But even if I gave him the benefit of the doubt and accepted the evidence that he had a two-stage operation and used seven grams daily, this still places him in possession of a significant and large amount of marijuana. Far more marijuana than he was ever authorized to possess legally.

The juxtaposition of the volume of marijuana seized in this case, with the evidence of his authorized medical marijuana quantities presents a strong conclusion that supports an inference of trafficking as opposed to pure personal use.

Baking with Marijuana

The defendant testified that he consumed some of the marijuana by baking. He said that he would take the bud and mix it with butter. He would use this butter to bake and there would be no "green taste". He described mixing the T.H.C. with the butter and refreezing the butter. He even described spreading the butter on bread.

As a Judge in the Ontario Court of Justice, I should say I am not required to live in a reclusive monastery on top of a mountain cut off from the community that I serve. I accept that there are persons in the community who combine marijuana with butter for cooking purposes. I do not dismiss the concept out of hand. On the other hand, I must also abide by the rules of judicial notice. Further, I must restrict my analysis to the record that was placed before me.

It is possible, within the realm of all possibilities in the world, that the defendant has in fact mixed marijuana and butter in the past. Yes. But I totally reject the assertion by the defendant that this cooking project is a relevant factor concerning the volume of marijuana in this case. There are several reasons for this conclusion.

First, the defendant did not provide any detailed explanation of the process. There were no measurements. There were no weights. There was no use of heat (for example boiling the marijuana to process it). There was no use of kitchen implements (for example a food processor to process the marijuana). What the defendant did is simply gloss over the process by testifying that he would "grind the bud" to access the T.H.C. During another recount of the process when he was testifying, he described "shaking the bud" to obtain "crystals". I categorically reject this evidence.

Second, in a general sense, the defendant sought to make the production of marijuana butter an explanation for his possession of large amounts of marijuana. When pressed in cross-examination, he testified to perhaps yielding 20 sticks of butter (through an unknown measurement) and perhaps using two sticks of butter at a time when cooking with marijuana butter.

Third, there was no explanation of the yield through this process. When the defendant testified in direct examination, there was no formula, no recipe. How exactly is the marijuana product, raw product, consumed by the production of marijuana butter? This is a logical and obvious question. The answer is peculiar to the defendant. Only he knows. For example, if the defendant had told me that a pound of marijuana produced 20 sticks of marijuana butter, this would provide the Court with an understanding of the relationship between the amount of the marijuana product and the production of butter. But there was no evidence on this issue.

Finally, and most significant in my view, was the evidence concerning the defendant's possession of hash.

Hash in the Mason Jar

During the defendant's testimony concerning marijuana butter, he referred to a mason jar seized by the police.

During direct examination, the defendant testified that the mason jar was filled with "crystals" not hash. He acquired these "crystals" from the marijuana bud by shaking or dusting marijuana bud into the mason jar. He then took the crystals from the mason jar and mixed it with butter. This is what he had the mason jar for - mixing with butter.

During cross-examination, it was put to the defendant that cannabis resin (otherwise known as hash oil or hash) was what was inside the mason jar. The defendant then suggested to the Court that "crystals" were hash too. He re-affirmed his direct evidence that he would dry marijuana bud and shake it to obtain the substance found within the mason jar. He specifically denied using any extractors to produce the substance.

Well, the exhibit log documented the seizure of hash.

The Certificate of Analysis from a scientist who tested the substance admitted on consent in this proceeding proves that the content of the mason jar is cannabis resin hash.

Just in case I was in any doubt, the actual exhibit was brought to court, opened in open court and a sample of the product seized was viewed by everyone in this courtroom. The Court viewed the substance from a few inches away. It is perfectly evident that it is hash in the mason jar.

Separate and apart from the mild shift in his evidence on point, I just do not believe the defendant. For some unknown reason, he chose not to acknowledge that he possessed hash in that mason jar and decided to call it "crystals". I do not know if he failed to appreciate that the actual exhibit could be produced and viewed by the Court. I do not know why he did that.

Rather than simply say to the Court - look, this is my hash. I know it is hash. I admit I possessed it. But that does not mean that I am a trafficker. He sought to present this crystal fiction and interweave it with this marijuana butter story to this Court.

I am confident that he has fabricated this component of his story and this is ancillary to the marijuana butter cooking evidence that he presented.

Calendar Entry: "Feed the Clones"

The police seized a calendar with a reference to "feeding the clones". I have seen a picture of the calendar; it is filed as an exhibit. This is common language for feeding female marijuana plants.

The defendant agrees that he made this entry and it is his handwriting, but disputes that this reference is to "clone plants". The defendant testified that the reference to clones really is a reference to seedlings and to somehow assist him with the feed cycles. The defendant, I should note, maintained that he grew his plants from seeds rather than clones.

I do not believe the defendant's evidence that the reference to "feed the clones" is a reference to seedlings. When he testified, he did not use the term interchangeably. He called his young plants seedlings. A couple of times, he called them "babies". I should assure the gentleman I read over the entire transcript of this trial again to make sure that I had it correct. I believe that the reference to "feed the clones" references female plants that the defendant cultivated.

The expert witness testified that the most common way to produce marijuana is by cloning. The defendant testified to vague circumstances of purchasing seeds over the internet. There was no corroboration of this testimony and at this point, given his credibility, I need corroboration and little detail provided by the defendant for me to evaluate.

I flatly and categorically reject his evidence on this point. The defendant has enough experience in growing marijuana to avoid the innocent use of such loaded words as "feeding the clones". He would not risk such a poor choice in words -- such an incriminating use of common words such as "clones".

Once again, I conclude that the defendant was not forthright on this issue.

Male/Female Plants

I have heard evidence that marijuana production relies on female plants - male plants are not useful. The defendant argues that there is no evidence that the plants seized were female plants. Having regard to my credibility findings overall and my findings overall in this case and the references to clones on his calendar, I am not troubled by this issue for one moment. The set-up of the production facilities, the ancillary instruments, the resources expended to produce the marijuana were all driven towards the anticipation that female plants would ultimately flourish. The expert witness described the ongoing process by which male plants would be weeded out in favour of female plants. The female plants would be cloned thereby producing more plants.

I do not believe that the defendant expended the significant resources in the physical plant associated with the indoor production facility because he was interested in general gardening. His point was to cultivate female plants.

Conclusion

The set-up of the production facilities and the quantum of drugs objectively point to trafficking.

When I overlay the credibility concerns exemplified by the analysis of the other issues that I have outlined in this judgment, that conclusion objectively available is solidified.

I must give credit to counsel in this case. She has worked very hard to place the evidence before the Court on its best footing for her client. She has done an excellent job. But at the end of the day, the credibility of the defendant is fatally compromised.

Frankly, Mr. Crawford, his family, are due sympathy. But I cannot allow my decisions as a judge to be guided by that natural human emotion. I want to say that I wanted to believe the defendant and I can honestly state with a clear conscience in my heart that I have anxiously considered all of the evidence in this case and I have asked myself if there is any possible way that I can arrange this evidence so that a reasonable doubt would be available. And is there any way, any construction of the evidence that could reasonably equate with the innocence of the defendant on the issue of trafficking?

If I could have a doubt, even a slight doubt in my mind, I would resolve it in his favour, enroute to an innocent construction of the evidence or simply using the W.D. analysis. But I conclude reluctantly frankly that I largely reject the evidence of the accused. I do not have any doubt in my mind. There is no scenario that negates the irresistible inference in support of trafficking.

I am satisfied beyond a reasonable doubt that he produced marijuana and possessed it for the purpose of trafficking.

I find that the prosecution has proven the aggravating factor of trafficking in relation to the production count.

The defendant is found guilty of possession for the purpose of trafficking.

So given the agreement of counsel and the issue with respect to the plea, it will now be noted that he was found guilty of that count just to be clear for the record.

Section 16 of the Controlled Drugs and Substances Act - Disposition of the Money Seized

As a separate matter, prior to addressing the relevant sentencing principles and the appropriate sentence in this case, I will address the prosecution's application for forfeiture pursuant to Section 16 of the Controlled Drugs and Substances Act of $7,950.00 in cash found within the defendant's room in a china cabinet. The wording of Section 16(1) of the C.D.S.A. is mandatory. I must order forfeiture if the prosecution has established on a balance of probabilities that the money is "offence related property" and that a "designated substance offence" was "committed in relation to that property". Those are the relevant points in Section 16.

The defendant testified as to the circumstances surrounding his possession of $8,950.00 in cash. But I am dealing with $7,950.00 in cash for reasons that are not important to go through.

Defence counsel called Mr. David Russell who testified that he paid the defendant $18,000.00 in cash to do some renovation construction work on some properties he owned in 2013. The construction work was worth about $25,000.00 and he provided a deposit of $18,000.00 to the defendant.

At the time he hired the defendant, Mr. Russell had no prior relationship with the defendant. By the time of his testimony at this trial, Mr. Russell testified that he had recently formed a company with the defendant.

Certain documents were filed as exhibits concerning this transaction including documents memorializing the agreement.

The federal prosecutor cross-examined Mr. Russell concerning differences between Exhibit 7 (which was filed by defence counsel) and an exhibit that was filed in another trial (this became Exhibit 9 in these proceedings).

When the federal prosecutor took Mr. Russell through Exhibit 7 and Exhibit 9, there was a material inconsistency. As a result of this evidence, it was crystal clear that there could be no confidence in the continuity or authenticity of the documentation purporting to be a receipt memorializing this transaction. I do not believe that Mr. Russell is telling the truth about this transaction. In addition, I am concerned about bias in that Mr. Russell referenced the fact that he is an interest party and that the work has not been completed and he has lost the money seized by the police. Frankly, for the purpose of this proceeding, I need not make a finding that Mr. Russell, the defendant, or both of them manufactured evidence. It is safer if I simply observe that after the cross-examination by Mr. Raven, I have no confidence in the veracity or continuity of the documentation filed.

To continue on with the analysis of disposition of the money, there are other reasons to be concerned.

First of all, the defendant testified that he was meticulous with records and details as it pertained to work. He even testified that he was meticulous with respect to records associated with his marijuana production. He is the one that volunteered this testimony concerning his practices. Yet there are no receipts or documents associated with the purchase of items and material concerning this work. The defendant testified that he ordered the material from Home Depot because they deliver. Yet there is no receipt or record of delivery verifying this. Receipts and records are relatively easy to obtain. Especially from large corporations such as Home Depot.

The defendant further testified that he noted details concerning materials purchased on the outside of a white envelope containing the seized money. Again, recall his evidence that he is meticulous. He also volunteered that his wife made notes on the outside of this white envelope with respect to purchases that she made referable to the money contained within.

The prosecution secured the actual exhibit and called evidence to demonstrate that there was no envelope encompassing the money. No envelope was seized. The money was in a Pier One Plastic bag with dimensions of eight inches by 16 inches. The physical exhibit was presented in court. There was no writing on that exhibit. As an aside, I am reasonably confident that had there been writing on the outside of a white envelope with a large amount of money in it, the police would have seized it like they do in every other case because it is relevant.

Who wrote on the outside of the envelope helps determine identity or who is involved in the drug trade. Police are keenly focused on seizing that kind of evidence.

Furthermore, when the envelope was opened here in court, the money was in a pile of crisp bills stacked approximately eight inches high. It is hard to imagine this money being within a standard white envelope.

Finally, there was no receipt or bank draft documentation the source of the cash from Mr. Russell. The money apparently provided by Mr. Russell to the defendant must have been obtained from somewhere. Mr. Russell did not address this issue.

I have received little or no detail concerning the defendant's employment during the relevant time period. I do not know what his yearly income was. I do not know how often he worked as a landscaper or construction. I do not know what he claimed as income on his income taxes for example. As such, I have virtually no understanding of his financial affairs.

With great respect to defence counsel, I do not agree with the defence submission that by analyzing these factors, the Court is somehow reversing the burden of proof.

I am not reversing the burden of proof with these observations. The defendant produced Mr. Russell as a witness. The defendant testified to the notations on the white envelope. The defendant testified that he purchased landscaping materials at Home Depot. Where these explanations are advanced, the Court has a duty to analyze the evidence thoroughly and completely. Logic, common sense, and reasonable inferences founded in facts are available. This is particularly important where the evidence is peculiar to the defendant.

Notwithstanding all of these considerations, the federal prosecution has failed to prove that the money was "offence related property" as defined in the C.D.S.A. and that a "designated substance offence" was "committed in relation to that property". The money in question was found in a china cabinet in the bedroom. There must be some evidentiary basis linking that money that was seized to the designated substance offence: R. v. Durette, 2014 ONCA 747 at para 10.

The application for forfeiture of the seized money is dismissed.

Sentencing

Section 718 of the Criminal Code of Canada provides the fundamental purpose of sentencing:

Purpose

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

• To denounce unlawful conduct and the harm done
• To deter the offender and other persons from committing offences
• To separate offenders from society where necessary
• To assist in rehabilitating offenders
• To provide reparations for harm done to the victims or to the community
• And to permit a sense of responsibility in offenders and acknowledgement of the harm done to victims to the community

Section 10 of the C.D.S.A. provides:

Purpose of Sentencing

10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, the treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Section 10 of the C.D.S.A. and Section 718 of the Criminal Code set out appropriate guidance with respect to the purpose and principles of sentence. I note that there are no statutory aggravating factors enumerated in Section 10 of the C.D.S.A. at issue in this case.

There is no evidence that the defendant used weapons. There is no direct evidence that public safety was at risk. For example, by accessing hydro illegally and things like that.

That being said, I am entitled to recognize that in the Durham Region, there is a significant problem with marijuana production facilities. Further, as a criminal court judge, I cannot be naive about the risk to the public. When you engage in illegal production of marijuana, you create risks for your personal well-being and the well-being of your family and your neighbours. One thing that is particularly important in this society is the idea that every man, woman and child should be able to go home to their residence and be in peace there.

I find that the relevant sentencing principles include denunciation, general deterrence, specific deterrence, and rehabilitation.

With respect to general and specific deterrence, I pause for a moment to consider the current circumstances in Canada.

Frankly, at a time when the Federal Government is considering the delicate balance associated with providing access to medical marijuana, a person like the defendant does not help the cause. There are individuals in society who suffer from serious medical conditions - and with all due respect to the defendant's medical circumstances, far worse medical circumstances and conditions - for example cancer and they desperately need this kind of medicine and the actions of people like yourself cause harm do violence to that whole process.

When licensed marijuana producers or marijuana producers with lapsed licenses engage in trafficking behaviour, this does violence to the whole system.

That being said, I must also consider the rehabilitative prospects for the defendant.

Categorizing the Trafficker

Appellate Courts suggest and require that I must do my best when sentencing a drug trafficker to place them on a rough scale.

On the evidence I have received, I do not believe that the defendant is a major high-level drug trafficker.

He is also not a street corner dealer of small bags of marijuana.

My task is made harder by the fact that I have found that he has not been forthright with the Court.

My honest believe is that what is most probable in these circumstances is the gentleman was an authorized medical marijuana producer who was simply drawn into producing some excess amounts. Perhaps, perhaps he simply shared the excess with family or close friends. Perhaps the trafficking (it still meets the definition of trafficking when you share it with friends and family), perhaps it was just at a very low level. I say perhaps because if I had any evidence from him to help me with this decision, it would assist me with sentencing but I simply do not know. He has denied that he was trafficking. Let me say this as plain as possible.

I find it significant that he is packaging one pound amounts of marijuana in ziploc bags with certain "brand" names. I think it is significant that he has six of these such bags.

I think that he, the gentleman before the Court tends toward an intermediate or mid-range producer and trafficker based on the admissible evidence at this sentencing.

Background of the Offender

The defendant has no prior record.

I have read material produced by his spouse frankly more than once - the last time being this morning. His spouse loves him. His family loves him. His children love him.

To use the legal term - he is a "good guy". A "stand-up guy". A hard worker. A good friend. A good father.

He has medical circumstances. His background is worthy of sympathy.

Mitigation

The defendant still deserves some credit for remorse associated with a guilty plea. I recognize that the trial of an issue was lengthy and involved frankly the core of the prosecution theory. But he still pled guilty.

In mitigation, I have exhibits bearing out the medical issues for which the defendant has received medical marijuana. These issues are serious for this particular defendant and can be debilitating.

There is no evidence presented to this Court to support a finding that the defendant is an addict trafficker. Indeed, the sentencing cases in this area provide some basis for the Court to exercise some discretion in favour of treatment and rehabilitation if that is the rationale for the trafficking. I have no evidence of that.

Here I have a defendant who has categorically denied trafficking. Were it so that he was subsidizing an addiction to marijuana with evidentiary support, I might disposed to view that as mitigating, but I do not have that evidence.

Factors Neither Mitigating Nor Aggravating

None of the considerations in Section 10(2) of the C.D.S.A. apply. None of the aggravating circumstances.

As I pointed out, there is no evidence of weapons or violence directly associated to the acts committed by the defendant.

I have disabused my mind from considering any of the evidence of the defendant working with the co-accused in this case.

Aggravating Factors

While I have laboured to demonstrate the defendant's credibility issues, this is not an aggravating factor on sentence and I will not punish him for being less than forthright with the Court. I need to keep my focus on what is the right sentence, proportionate sentence, the just sentence, rather than punishing him for not being straight forward with me.

The scale and organization of the marijuana trafficking facilities bear out a significant commitment to the production of illegal marijuana.

As outlined earlier in this judgment, this is not a case of an authorized marijuana producer letting his licence lapse or failing to count his plants properly.

Conditional Sentence

The defendant requests consideration of a conditional sentence if the Court is disposed towards a jail sentence.

I have found him guilty of possession for the purpose of trafficking and production for the purpose of trafficking.

As per Section 5(3)(a) of the C.D.S.A., trafficking in a Schedule II substance is punishable by life in prison if the quantity is in excess of three kilograms (which I found in this case). Section 742.1(c) of the Criminal Code provides that a conditional sentence is not available for indictable offences punishable by life in prison.

Conclusion

Section 718.2(b) of the Criminal Code provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

And it is true that an appellate court should only intervene where the trial judge's sentence differs substantially and markedly from those customarily imposed in similar circumstances R. v. M. (C.A.), 1 S.C.R. 500 at para 92.

Well, I have reviewed the cases provided by the parties and recognized the challenge that they had without any disrespect to either counsel. This is a very unique case; there are no cases that are similar that assist with the sentencing.

I can assure this gentleman that I reviewed all of the cases in the electronic databases. Many hours work spent reviewing those cases.

I have reviewed the cases in the text Sentencing Drug Offences authored by Justice Simon Armstrong, Mr. Adam Boni, Mr. Andrew Sabbadini, and Justice Steve Coroza.

This is a very unique circumstance.

There are cases in British Columbia involving access to medical marijuana. There are a few cases where the defendant possessed a licence and that was a factor in the prosecution. But I could not find any cases where the person was licenced right up to the police investigation and thereafter.

The predominant approach in sentencing in this area until recently has been a conditional sentence of jail. Predominant feature of the sentencings that I have seen are conditional sentences. There are very few sentences post the amendments that are relevant. When I consider all of the relevant sentencing principles, I have come to the conclusion that a jail sentence is required to achieve the aims of sentencing.

The first jail sentence should be the minimum needed to address aims of sentence. I referred to the letter from Barbara Crawford. I think to a degree, specifically deterring this gentleman from doing this again has been accomplished by the impact on his family as described by Barbara Crawford. The impact on his 11 year old daughter. This is painful to read and appreciate. This will deter a good man from doing this again.

I have resolved with great respect to the federal prosecutor's position. I understand the basis of that position. I understand the approach, but this is a very unique circumstance and I think that the appropriate sentence is substantially lower than that submitted by the prosecutor.

Mr. Crawford, would you stand at this point please sir?

Sentence

Sir, I sentence you to five months jail concurrent on both counts. You may be seated sir.

In my view, that is the minimum sentence that I can justify - barely justify on the facts in this case. It gives me no pleasure to sentence this gentleman to a period in custody.

In addition, there will be a 109 order for ten years.

In addition, I will order with respect to both convictions, a D.N.A. sample be obtained. That application is granted on the part of the prosecution. I am satisfied that the impact of the D.N.A. order on his privacy is far outweighed by the relevant considerations. I have also considered guidance from the Supreme Court of Canada and the Ontario Court of Appeal on point.

In addition, partly as a substitute for more jail and to assist this gentleman with rehabilitation, I am going to address a probation order at this time.

Mr. Crawford, you will receive a copy of this probation order in writing. It will be typed out; you do not have to memorize what I am saying to you, but I will explain the conditions to you at this time.

You will be placed on probation for two years. The terms will be keep the peace and be of good behaviour. Appear before the Court when required to do so. Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change in employment or occupation.

Reporting

You will report in person to a probation officer within seven working days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist you in your supervision.

Residence

You will live at a place approved of by your probation officer and not change that address without obtaining the consent of the probation officer in advance.

I am going to address a couple of terms that are important for the rehabilitation of this gentleman and protection of the public. I am not going to order sir that you not possess marijuana. I have read all of the medical documents that have been provided to me. It is clear to you that I have read Barbara's letter many times and I know you have significant issues. I am going to let you deal with that. I am not going to order (which I could) that you not possess marijuana because I think you need it for medical reasons.

What I am going to do is prohibit you from producing marijuana. You have lost that privilege.

So first term, do not engage directly or indirectly or by any other means produce any substance governed by the C.D.S.A. What that means is you are not to be a partner with someone in a medical marijuana company or anything or investor or silent partner. Nothing. You are not associated with the production of marijuana. Get your appropriate documentation and your permission from the doctor and from Health Canada you can go and purchase it and use it for the medical reasons that you need. I do not want to stop you from doing that.

Second of all, do not apply for any authorization to produce any substance governed by the C.D.S.A.

A transcript of this judgment I have already ordered it through the judicial secretary. So the parties do not need to do that. A transcript of this judgment is to be forwarded (this is not part of his probation order I am just saying it at this time Mr. Raven) by the federal prosecutor to the Durham Regional Police and to Health Canada so that they are aware of these circumstances.

For some unknown reason, Health Canada provided this gentleman with a renewed licence and that does violence to the very medical marijuana system that the Federal Government is trying to set up. So I do not want that to happen again.

Again, I want to be clear you will be permitted to possess marijuana with a prescription and the appropriate authorization.

In addition, I am not going to say on the record some of the things your wife has told me about your circumstances, but I want you to get some counseling. I think that counseling may assist with some of the other issues. Attend and actively participate in all assessment counseling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for stress management, psychiatric or psychological issues.

You will sign any release of information forms that will enable your probation officer to monitor your attendance and completion of any assessments, counseling or rehabilitative programs as directed. You should provide proof of your attendance and completion of any assessments, counseling or rehabilitative programs as directed.

To be crystal clear in terms of my order, the sentence is concurrent on both counts. I have not ordered forfeiture of the money that was seized. So that money will be returned to this gentleman.

With respect to the ancillary items seized by the police on the property, neither party has addressed that issue. So before I complete my sentence, I will receive submissions from counsel with respect to the disposition of item seized and I expect the federal prosecutor will seek a 490 order to destroy the volume of drugs that was seized.

MR. RAVEN: Yes Your Honour.

THE COURT: I will give the parties an opportunity at this time to address those issues.

MR. RAVEN: Thank you Your Honour. May I see Exhibit 4 please?

THE COURT: Yes.

CLERK OF THE COURT: Your Honour there is a bench warrant in discretion returnable to today's date?

THE COURT: Rescinded.

CLERK OF THE COURT: Thank you Your Honour.

THE COURT: And one last thing, this pre-dates the victim fine surcharge provisions. I am not going to order any victim fine surcharge in this case. I am going to waive the victim fine surcharge.

MS. CLAXTON: Thank you Your Honour.

THE COURT: And what I am prepared to do as well, I frankly think the two of you will need a few minutes to kind of go through and say what should be returned to this gentleman and what should not. Particularly given the previous authorization and so there was a justification to have some of the things. It is not one of these clear cases. So what I am prepared to do is subject either of you objecting, this gentleman does not need to sit here and be tortured by the process. He can go. The two of you can go outside draft an order and file it. I am still presiding in this Court all day.

MS. CLAXTON: Thank you Your Honour.

MR. RAVEN: Thank you.

THE COURT: Mr. Crawford listen. I feel like you will not come back. I have done what I think is just in giving you the least sentence that I can justify. I think you are a good person and a good father and a good husband. Please turn around from this behaviour and please do not come back. Good luck to you sir.

Certificate of Transcript

Evidence Act, subsection 5(2)

I Tammy Irvine, certify that this document is a true and accurate transcript of the duplicate recording of R. v. Brent Crawford in the Ontario Court of Justice held at Oshawa, Ontario on October 25, 2016, taken from Recording No. 2811_404_20161025_091343_10_FELIXMA, which has been certified in Form 1.

................. .................. (Date) (Authorized Person)

Legend (sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) - Indicates preceding word has been spelled phonetically.

Photocopies of this transcript are not certified and have not been paid for unless they bear the original signature of Tammy Irvine, and accordingly are in direct violation of the Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.