ONTARIO
SUPERIOR COURT OF JUSTICE
GUELPH COURT FILE NO.: 12-0139
DATE: 20121122
B E T W E E N:
HER MAJESTY THE QUEEN
David D. Doney, for the Respondent
Respondent
- and -
GARY BENTLEY Applicant
Daniel C. Santoro, for the Applicant
HEARD: October 11, 2012
REASONS FOR JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[ 1 ] The accused/applicant herein has before the court an application for an order by way of certiorari , quashing the order committing him to stand trial, made on the 20 th day of August, 2012, by the Honourable Justice N. Douglas of the Ontario Court of Justice,
[ 2 ] The accused submits that overall there was insufficient evidence to order his committal. More specifically, he argued that there was insufficient evidence that the plants seized were marijuana and insufficient evidence linking the accused to the production and possession of marijuana.
DECISION OF TRIAL JUDGE
[ 3 ] At page 42 of the transcript, Justice Douglas sets out his reasons for the committal. He notes that, even without identification evidence with respect to the accused, there is sufficient evidence to commit based on the fact as to what was found on that property and with respect to who the registered owner is. The learned judge went on to say that there is some evidence that Officer Levine was one hundred percent sure that the accused was the male he saw on the property and in the grey Cadillac motor vehicle.
[ 4 ] The learned judge also felt there was sufficient evidence based on the testimony of the officer that the plants seized were marijuana regardless of the fact that no certificate of analysis filed. It was felt by the learned judge that the officer was experienced and was involved in the drug enforcement unit and identified the over 8,000 plants as marijuana.
REVIEW PARAMETERS
[ 5 ] Chief Justice McLachlin, in R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828, at paragraph 1 , stated:
I reaffirm the well–settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict,
[ 6 ] The preliminary inquiry judge is not required to draw inferences or assess credibility. The judge must consider whether the evidence taken as a whole could reasonably support a verdict of guilt.
[ 7 ] At paragraph 33, the Court states:
If the evidence could result in a conviction, the accused must be committed. Otherwise he must be discharged.
[ 8 ] In R. v. Deane [2012] O.J. No. 1135 , Justice Miller of the Ontario Superior Court of Justice stated that, in determining whether a judge exceeded her jurisdiction by committing the accused,
Test for the reviewing court therefore remains whether there is any evidence to provide a basis for the opinion of the preliminary hearing judge that the evidence was sufficient to put the accused on trial.
[ 9 ] The decision to commit an accused to trial cannot be overturned because the reviewing court would have reached a different conclusion.
[ 10 ] The preliminary hearing judge’s determination of the sufficiency of the evidence is entitled to the greatest deference and is to be interfered with only if there is no such evidence on an element of the offence.
[ 11 ] I am also guided by the Ontario Court of Appeal decision in R. v. Manickavasagar [2004] O.J. No. 600 . From paragraph 4, I quote:
On an application to quash a committal for trial, based on the contention that the evidence could not support the committal, the application judge does not weigh the evidence against the committal for trial standard, but must only decide whether there is any evidentiary basis upon which the court below could form the opinion that the evidence was sufficient to justify a committal for trial.
[ 12 ] The Court went on to reference the decision in R. v. Tuska [1978] O.J. No. 1253 and quoted from that case as follows:
The reviewing court is not empowered to determine whether in its opinion there is any evidence upon which a properly instructed jury acting judicially could convict, but is confined to considering whether there is any evidence before the committing justice upon which acting judicially he could form an opinion that the evidence is sufficient to put the accused on trial.
EVIDENCE, ARGUMENT & ANALYSIS
[ 13 ] The only Crown witness called at the preliminary hearing was Officer Levine. From the evidence, I note the following.
[ 14 ] The property upon which the alleged marijuana grow operation was situated was owned by the accused.
[ 15 ] Located on the property at all times was a red and silver GMC pickup truck registered to the accused. There is no evidence that it was ever moved or relocated.
[ 16 ] There was also a grey Cadillac observed on the property and, at other times, observed leaving the property or arriving at the property. On this point, it was the submission of defence counsel that, while it was determined that the accused owned a similar grey Cadillac, there was no evidence to suggest that the Cadillac observed was, in fact, the Cadillac owned by the accused.
[ 17 ] With the greatest respect, on this point I disagree and find that there was some evidence to suggest the Cadillac observed was the one owned by the accused. In that regard, I make reference to page six of the transcript. On May 27, 2011, the witness conducted a search of vehicles associated with the accused through the Ministry of Transport. The officer learned from that search that the accused had nine active and plated vehicles,
...two of which matched the description of the vehicles I (the officer) had observed there was a grey 2007 Cadillac TDS bearing Ontario licence plate BJPZ121 and a grey 1995 GMC sierra pickup truck bearing Ontario licence plate 4881WM.
[ 18 ] The word “matched” arguably means the plate number and model of the grey Cadillac observed by the officer matched the model and plate number revealed on the search.
[ 19 ] As to the identity of the accused, the witness described the male person he saw on the property as white, middle aged, heavy build, dark hair, and wearing a black and red coat.
[ 20 ] The officer testified that he never was able to see the face of the male person he was observing. He did see this person go from the barn to the house and vice versa , and saw this male person get into the grey Cadillac and leave the property as well as arrive at the property in the same car on another occasion.
[ 21 ] The officer testified that the observations made relating to this male were consistent with how he would describe the accused who he first observed after the accused was arrested.
[ 22 ] At page 15 of the transcript, the court asked the witness, Officer Devine:
Now this person you’ve described that you observed, that was not the accused Gary Bentley?
The officer answered:
In hindsight I cannot say for certain, but I believe it to be based on his physical characteristics and the fact that the male was observed leaving in a grey Cadillac which is owned by...
[ 23 ] Shortly thereafter, the witness was asked by the court:
Sitting in the witness box now and putting your mind back to what you saw, how confident are you that it was him?
[ 24 ] Officer Devine responded:
How confident am I? I’m a hundred percent confident that it was him, but that’s circumstantial...
[ 25 ] The aforementioned constitutes some evidence establishing that the male person seen on the property entering and exiting the barn and the house and operating the grey Cadillac was the accused. The strength of the evidence is another issue.
[ 26 ] When, on June 23, 2011, the police executed their search warrant with respect to the barn and house, the accused was not located on the property nor was the grey Cadillac.
[ 27 ] The officer testified that he entered the barn and commenced sampling and exhibit officer duties. He was assigned as the exhibit officer for the barn. He testified to seizing 101 numbers of cannabis marijuana plants known to be mother plants which he said were used for cloning. He also seized what he described as 3672 cloned marijuana plants and 1413 budding marijuana plants.
[ 28 ] The officer seized 1463 immature marijuana plants, another 1537 budding marijuana plants and finally 1394 budding cannabis marijuana plants.
[ 29 ] The officer also described the equipment seized related to such a grow operation, such as lights and a scale, together with a large number of Ziploc bags.
[ 30 ] The officer was not qualified as an expert nor was he asked on direct or cross examination as to why he formed the opinion that the plants seized were cannabis. Defence counsel submitted that, without a certificate of analysis, the plants cannot be identified for our purposes. Counsel further submitted that the officer’s statement that the plants were marijuana plants, without establishing the basis of such opinion, cannot be accepted as evidence.
[ 31 ] Defence counsel referred to three authorities in support of his position with respect to the lack of evidence of the type of plants. Those authorities are: R. v. Grant 2001 ABCA 252 ; R. v. Labine 1975 1403 (ON CA) , [1975] O.J. No. 235; and R. v. Newell (2000) 48 W.C.B. (2d) 448 .
[ 32 ] The Grant decision was an appeal of a judgment after trial. This case is authority for the point that the certificate of analysis is the proper way to establish the nature of the substance seized. The decision also indicated that such an opinion is not to be taken as foreclosing proof by another means in every possible case.
[ 33 ] In the Labine decision, the Ontario Court of Appeal determined that there was sufficient circumstantial evidence without a certificate of analysis to enable the court to determine the substance was marijuana and went on to identify the evidence by such things as the price paid for the cigarettes and the colour.
[ 34 ] Defence counsel cited the Newell case as an authority for the proposition that simply testifying the substance is marijuana is not to be accepted as fact without establishing a basis for the opinion.
[ 35 ] I believe there is some evidence that the plants seized were marijuana. Officer Devine not only testified that the plants were marijuana in general, but he had the quantity seized broken down as to age and purpose. He identified the equipment seized as being associated with a grow operation. From his evidence can be inferred a knowledge and experience with respect to marijuana. He was identified as being with the drug enforcement squad. Again, the strength of the evidence may be a different issue.
[ 36 ] Accordingly, I find that there is some evidence that the property in issue belonged to the accused and that he was the same person as observed on the property coming from and going to the barn where the plants were located and that the grey Cadillac motor vehicle was that of the accused.
[ 37 ] My role is not to substitute my opinion with that of Douglas J. as to whether or not the accused ought to have been committed to trial. It is my function to determine if there was any evidence before the learned judge upon which he could form an opinion that the evidence was sufficient to put the accused on trial.
[ 38 ] I find that there was evidence before the learned judge upon which he could form his opinion as to the sufficiency of the evidence and thereby commit the accused to a trial.
DECISION
[ 39 ] The accused’s application by way of certiorari seeking an order quashing the accused’s committal to trial is dismissed.
Justice Thomas A. Bielby
Released: November 22, 2012
GUELPH COURT FILE NO.: 12-0139
DATE: 20121122
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – GARY BENTLEY Applicant REASONS FOR JUDGMENT Justice Thomas Bielby
Released: November 22, 2012