R v Stethem
Judgment
COURT FILE NO.: 87/12
at Kingston
DATE: 2014 JAN 24
FRIDAY 24 JANUARY 2014
C O U R T O P E N E D (1:06 p.m.)
THE COURT: Counsel, and Mr. Stethem, I will now give my reasons for decision in this case.
JUDGMENT
MacLEOD-BELIVEAU, J (orally):
Mr. Stethem stands charged, on a three-count Indictment, that on January 14th, 2011 he committed two offences of possession of marihuana for the purpose of trafficking, and one count of unlawfully producing marihuana.
Counts 1 and 2 - the possession for the purpose of trafficking charges in the Indictment - contain the included offence of simple possession. Count 1 relates to the marihuana found in his residence. Count 2 relates to the marihuana found on his person at the time of his arrest. Count 3 relates to the one marihuana plant found on his kitchen counter top. The Crown conceded, in his closing argument, that there was insufficient evidence to support a conviction for the production charge, as the plant was not alive on January 14th, 2011. The verdict on Count 3 has previously been endorsed as "not guilty".
Mr. Stethem pled not guilty to all charges, and did not testify on his own behalf at trial.
For the reasons detailed below, I find Mr. Stethem not guilty as charged of possession for
2
R v Stethem
Judgment
(THE COURT - continued)...
the purpose of trafficking, as alleged in Counts 1 and 2, but guilty of the lesser and included offences of simple possession. The Crown has established guilt, beyond a reasonable doubt, as to the lesser and included offence of simple possession.
The Issues
In its essence, this case is about whether the two warrantless entries into Mr. Stethem's residence by the police were based on exigent circumstances, or whether the entries were in breach of s. 8 of the Charter? The issues are particularized as follows.
(a) Whether or not the police searches of
Mr. Stethem's residence were reasonable
and in accordance with s. 8 of the Charter of Rights and Freedoms, and, if the searches were not reasonable, and not in accordance with s. 8 of the Charter, should the evidence found, pursuant to those searches, be excluded under s. 24(2) of the Charter;
(b) If the evidence found pursuant to the searches is admissible, has the Crown proved, beyond a reasonable doubt, that Mr. Stethem possessed marihuana for the purpose of trafficking, contrary to
s. 5(2) of the Controlled Drugs and Substances Act (hereinafter the CDSA); and
3
R v Stethem
Judgment
(THE COURT - continued)...
(c) If the evidence found pursuant to the
searches is admissible, and the court finds that the possession for the purpose of trafficking charges has not been proven beyond a reasonable doubt, has the Crown proved, beyond a reasonable doubt, that Mr. Stethem was in simple possession of marihuana, contrary to s. 4(1) of the CDSA.
The Background Facts
I find the facts of this case to be the following.
On the cold and snowy day of January 14th, 2011, an animal-control by-law officer, Tanya Thake, performed an exhaustive search to find the rightful owner of an injured dog found in the middle of Battersea Road, in the Township of South Frontenac.
A township resident had found the dog on Battersea Road, and put the dog in his vehicle. When trying to re-enter his vehicle, the dog became aggressive. About one hour after the lunch hour, he called the animal-control officer for assistance in getting the dog out of his vehicle. The dog had a collar and a tag.
Ms. Thake, and her colleague Shevaun Dowe, attended and got the dog out of the vehicle. Ms. Thake then followed up on the identification on the dog tag and micro-chip, which contained a phone number. Her searches eventually led her
4
R v Stethem
Judgment
(THE COURT - continued)...
to Mr. Stethem's residence, about 2 kilometres away, on Battersea Road. Prior to approaching his residence, Ms. Thake spoke to a neighbour who lived across the road, who expressed concern for the occupant of that residence. Ms. Thake and Ms. Dowe then went over to the residence, to see if they could locate the owner, to come and get the dog.
It was a long distance to the house from the road. Ms. Thake and Ms. Dowe approached the premises, and walked around a locked gate - as did all the subsequent officers who attended the residence. Ms. Thake testified that the locked gate did not impede her, and would only stop vehicles. There was an older model SUV, with a license plate, parked in front of the stairs at the front of the residence, which she described as more like a cabin, or a camp. From the indentations and tracks in the snow, she determined that vehicles had been coming and going on the property, but not recently. There were fresh paw prints. She wanted to see if anyone was home.
Ms. Thake walked up to the front door, and found it closed. While the door was closed, it was not locked - as it began to open when she knocked on it. She could not see much through the slight opening of the door. She did not open the door any further. She could tell that the door opened into a room, but she could see nothing that would lead her to believe that any
5
R v Stethem
Judgment
(THE COURT - continued)...
criminal act had occurred.
The door-knob was missing, and the hole where it ought to have been was filled with a cloth or rag. She identified herself, and yelled, "Everyone okay?", with no response. Unsure of how she should proceed, she left the property after about ten minutes. She returned to where the dog was in the vehicle.
She and Ms. Dowe removed the dog using a noose, and placed the dog in Ms. Dowe's vehicle. Ms. Dowe took the dog to the vet, to be treated. Ms. Thake then contacted the Ontario Provincial Police, whom she asked to attend at the Stethem address, to provide assistance by way of a "well-being" check. She did not call 9-1-1. She waited about two hours for the police to arrive, and she met them at the Stethem residence.
Constable Brad Proulx received the call to meet the by-law officer on Battersea Road at 1558 hours. He was in a marked cruiser, and proceeded to the residence. He did not use any emergency sirens or lights. Constable Sandhu and an auxiliary officer, Greg Campbell, heard the call requesting back-up for a residence check by Constable Proulx at 1610 hours. They arrived at the Stethem residence at about 1630 hours. Constable Proulx and Ms. Thake were there when they arrived.
Ms. Thake told the police officers about her observations around the residence, and expressed her concern that someone might be
6
R v Stethem
Judgment
(THE COURT - continued)...
inside, and in some degree of danger. She related to them that the dog belonging to that residence was found some distance away, alone and injured, and that no one had reported the dog missing. Constables Proulx and Sandhu had no reason to doubt Ms. Thake's information. They did not independently do anything to check or verify the information that they received from her, as they found it unnecessary for the purposes of a well-being check.
Constable Proulx noticed that the vehicle at the front of the residence had the rear passenger window smashed, and that there were cables running from the car towards the house, which he found odd. He ran the plate on the vehicle, and it was registered to Stephen Stethem, at an address in the City of Kingston. There were no footprints in the snow, and no tracks to the wood pile. It was cold, and getting dark. There was no smoke coming out of the chimney, and there were no lights on. Constable Proulx was concerned that the home-owner was injured, or had died, and was still in the house. Constable Proulx was intending to do a "door knock". He had no idea of any criminal offence, and he was not investigating any criminal offence.
Constable Sandhu was checking the residence to see if anyone was deceased or in danger. He noticed there were no snow tracks in the driveway. The roof was snow-covered. There was no lights on. There was some kind of
7
R v Stethem
Judgment
(THE COURT - continued)...
battery charger hooked up to the vehicle, in front of the house, that led to the residence. He thought someone would be living there.
The First Entry
Constables Proulx and Sandhu entered the home, for the first time, at 1646 hours, by opening the door. Constable Proulx did not consider it necessary to get a search warrant, as he believed he had exigent circumstances when he entered the property. Constable Sandhu believed he had authority to enter, as he was checking on the well-being of the occupants. They called out, and announced themselves as OPP, and there was no answer. The door was slightly open, and had no locking mechanism. They knocked a couple of times, and then opened the door. Constable Proulx stuck his head inside. He could see bags of marihuana. Officer Proulx is not certain if the auxiliary officer, Campbell, entered the residence. They then entered the residence fully, and confined their search to the first floor. They did not disturb anything. They noticed, in plain view, the presence of Cannabis (marihuana) and "bud" in the residence, in various packages and jars, and in various quantities, as well as drug paraphernalia.
The residence was fully furnished, and had a generator. The kitchen was in disarray. There were no lights on. It was so cold that there was a fish trough with a layer of ice on top of
8
R v Stethem
Judgment
(THE COURT - continued)...
it, and live fish swimming underneath. There was a small kiddie-sized pool in the corner of the living room that was iced over. There was no heat inside. There was a cubby underneath the stairs going upstairs. The stairway entrance to the upstairs was covered in plastic, blocking the entire entrance going upstairs, and was taped from the outside, which Constable Sandhu found strange. Constable Sandhu had safety concerns about going upstairs. He had no idea what was up there, and why it was taped off. He was afraid the upstairs might be booby-trapped. There was a generator under the stairs. Six minutes later, they exited the house for the first time, at 1652 hours. No items were seized, touched or moved. No person was found on the first floor.
Officers Proulx and Sandhu discussed the possible need for a warrant, because of the drugs. They also discussed the possibility of a meth lab or a grow-op in the upstairs, and their safety concerns. They contacted their police sergeant, Sergeant Bleecker, for assistance, as they had only checked the first floor, and not the upstairs of the residence. There was no basement.
Constable Patrick Ducharme had also been dispatched, and arrived at the residence at 1705 hours. Sergeant Bleecker then arrived at the Stethem residence at 1723 hours. Constable Ducharme had more drug-investigation experience
9
R v Stethem
Judgment
(THE COURT - continued)...
than Constables Proulx and Sandhu. He was concerned about a possible meth lab, and the dangers that can pose, and possible booby-traps in the residence, as well as weapons and other hazards where drugs are involved. The other officers present sought his opinion about these possibilities, at the scene. The sergeant shared their safety concerns, as well as the concern that there may be someone upstairs who was deceased. They had not cleared the entire house, as far as the well-being check was concerned.
Shortly thereafter, the officers decided that it was important to check the upstairs, in exigent circumstances, and Constables Proulx and Sandhu did not want to go in by themselves.
The Second Entry
At 1727 hours, Constables Proulx, Sandhu and Ducharme, together with Sergeant Bleecker,
re-entered the residence, to check on the safety of anyone upstairs. They took one side of the plastic off the entrance to the upstairs, and checked the two upstairs rooms. One room appeared to be a bedroom, but was used as a weights-and-exercise room, with no bed in it. The other room, across the hall, had plant-growing equipment which was stored in it, but not being actively used.
There were more bags of marihuana in plain view, in the room with the weight equipment, in
10
R v Stethem
Judgment
(THE COURT - continued)...
the open closet. No injured or dead person was found. There were a number of pieces of plant-growing equipment, as I said, upstairs in other room. They did not disturb anything. After eleven minutes, they exited the residence, at 1738 hours. No items were seized, touched or moved. No person was found upstairs.
Constable Sandhu stated that he would never have just walked away from the residence, in the circumstances, without entering and doing a well-being check. Constable Sandhu believed that exigent circumstances existed at both times he entered the residence. Constable Proulx stated the same. Constable Ducharme stated that, once they determined there was no one upstairs, they left the residence.
Constable Sandhu was asked to do scene security, and he remained in his police cruiser, outside the residence, until 1845 hours, when he was relieved by another officer.
The officers knew that, after clearing the residence in their well-being check, they would have to obtain a warrant to make further entries in relation to the drugs. The drug unit was contacted, to begin the warrant process.
The results of those two searches were then relayed to the drug unit, and used in an Information to Obtain a Search Warrant, and form the only grounds for the warrant's authorization, and the eventual arrest and search of Mr. Stethem, upon his arrival at his residence later
11
R v Stethem
Judgment
(THE COURT - continued)...
that same evening.
Detective-Constable John William Quinn, with the Drug Enforcement Unit, completed the exhibits and seizures at the scene, with Detective-Constable Craig Sharpe and Constable Rob Cain, on January 15th, 2011, which took most of the day. They entered the residence with a tele-search warrant out of Newmarket, issued at 0130 hours in the morning, as a Justice of the Peace was not available, based on the affidavit of Detective- Constable Dave Hagerman.
Detective-Constable Quinn confirmed the condition of the residence, which he described as remote, as to no heat, no power, no lock on the door, dirty dishes, and general disarray. They found no weapons, no debt list, no multiple cell phones, and no booby-traps in the residence. He agreed that it was unusual for drug traffickers to leave their wares in an unlocked place, as the threat of robbery is of concern to drug traffickers.
Exhibits 1 through 11 were filed, being photographs of the residence's exterior and interior, the list of all items seized at the residence, Mr. Stethem's written statement, and Mr. Stethem's certificates of authorization to possess dried marihuana for medical purposes.
In sum, 1899 grams, or 1.9 kilograms, of marihuana were seized in the residence, in twenty different packages, including ziplok bags and jars, as well as numerous ziplok bags, a vacuum
12
R v Stethem
Judgment
(THE COURT - continued)...
sealer food saver, three high-performance lights and light fixtures, eight fluorescent bulbs, and various pieces of growing equipment, including a seeding heat mat, an electronic ballast, a digital heat mat, a thermostat, a heavy-duty digital timer, a submersible pump, piping and FibreGro - all admittedly not in use at the time of the search - and a black digital scale.
The Admitted Facts
The following facts are admitted.
(1) All items seized, and in the exhibit list, and listed as marihuana, bud, shake, et cetera, are Cannabis (marihuana), as listed in Schedule II of the CDSA;
(2) Mr. Stethem returned to his residence, and was arrested at approximately 2000 hours on January 14th, 2011 by Constable Matt Veley of the OPP. Constable Veley was performing scene security. Upon his arrest, Mr. Stethem was searched, and Constable Veley located a digital scale, a glass jar containing 25.9 grams of marihuana bud, and a medical practitioner's form, in the name of Errin Stethem, for medical marihuana;
(3) On January 15th, 2011, Mr. Stethem provided a statement to Detective-Constable Hagerman of the OPP. In that
13
R v Stethem
Judgment
(THE COURT - continued)...
statement, Mr. Stethem states that he lives alone at the residence in question, and that the marihuana found belongs to him. He stated that he had applied to Health Canada for a medical marihuana authorization, had a doctor's signature for the treatment of chronic pain, that he was having major difficulties with Health Canada and the paperwork, and that he had a meeting in February of 2011 to renew his certificate application. (Of note: the medical practitioner's form was not an authorization to possess dried marihuana for medical purposes at the time of the Indictment.); and
(4) On April 20th, 2011, Mr. Stethem was granted an authorization to possess 150 grams of dried marihuana, for one year. On April 20th, 2012, Mr. Stethem's authorization was renewed, to possess 510 grams of dried marihuana, for one year, and he was granted a personal-use production license for dried marihuana, for medical purposes, of 83 indoor plants, and for indoor storage quantities of 3735 grams, for one year, expiring on April 20th, 2013. On April 20th, 2013, Mr. Stethem's
authorizations were renewed to April 20th, 2014, on the same terms.
14
R v Stethem
Judgment
(THE COURT - continued)...
Credibility of Witnesses
I find all the witnesses in this case were credible, and were not shaken in cross-examination in any material way. They testified in a straight-forward manner, to the best of their abilities, as to their recollections about the events that occurred at Mr. Stethem's residence. I find that the officers' actions were well-intentioned, and that they acted in good faith, and in a bona fide manner in this case.
The Positions of Crown and Defence
The Crown's position is that the two warrantless searches of Mr. Stethem's residence were reasonable, and in accordance with s. 8 of the Charter due to exigent circumstances, as: the searches were authorized by law; the law that authorizes the searches is, in itself, reasonable; and the manner in which the searches were executed is reasonable. Further, it is the Crown's position that the evidence seized by the police should not be excluded, pursuant to
s. 24(2) of the Charter, and that the Crown has proven its case of possession for the purpose of trafficking, beyond a reasonable doubt, against Mr. Stethem.
The defence position is that the officers' entries into the home are not Charter compliant, and that the evidence seized should be excluded
15
R v Stethem
Judgment
(THE COURT - continued)...
from the trial. Absent the illegal searches of the home, there would be neither grounds to secure a search warrant, nor grounds for Mr. Stethem's arrest and subsequent search, and all evidence retrieved thereby should be excluded from his trial. If the Charter application is successful, there would remain no evidence on which Mr. Stethem could be convicted, and therefore he should be acquitted of all charges. Alternatively, it is the defence position that the Crown has failed to prove the guilt of Mr. Stethem, beyond a reasonable doubt, on the totality of the evidence, and that he should be acquitted of all charges.
Discussion
Were the police searches of Mr. Stethem's residence reasonable, and in accordance with
s. 8 of the Charter of Rights and Freedoms, and if the searches were not reasonable, and not in accordance with s. 8 of the Charter, should the evidence found pursuant to those searches be excluded under s. 24(2) of the Charter?
The Crown argues that the two entries were justified, because the officers had the authority to enter Mr. Stethem's residence, due to exigent circumstances, based on their common-law duty, and their duty under the Police Act to protect and preserve life.
The defence position is that the police should not have entered and searched the
16
R v Stethem
Judgment
(THE COURT - continued)...
residence at either time. It is the defence position that there was no urgency on the facts of this case, as no one was in need of assistance. The police should have conducted other investigations, to verify the information of the by-law officer, and done their own independent of the circumstances, before they entered Mr. Stethem's residence.
Warrantless searches are, prima facie, unreasonable and contrary to s. 8 of the Charter, which provides that everyone has the right to be secure against unreasonable search or seizure. It is up to the Crown to establish, on a balance of probabilities, that the searches were reasonable. An exception to the requirement of obtaining a search warrant can be based on necessity or exigent circumstance.
The proper test to apply, to determine whether the officers' search of the dwelling house was constitutional, is the Waterfield test. (See R. v. Godoy 1999 709 (SCC), [1999] 1 S.C.R. 311) The Waterfield test asks first whether the police conduct constitutes a prima facie interference with a person's liberty of property. There is no doubt that searching a dwelling house meets this threshold. The court must then consider two questions:
(1) Does the conduct fall within the
general scope of any duty imposed
by statute or recognized at common
law; and
17
R v Stethem
Judgment
(THE COURT - continued)...
(2) Does the conduct involve an
unjustifiable use of powers
associated with that duty?
The Duty
In this case, searching Mr. Stethem's residence falls within the general scope of the officers' common duty to preserve life. I find that the reason the officers entered the residence was to search for the owner, because they had good reason to believe that the owner may be injured or deceased. The officers did not enter the residence for the purposes of a criminal investigation. The police acted in response to a call for help from a concerned by-law animal-control officer, that a home-owner was or may be in distress. The police duty to protect life is not limited to victims of crime, but rather is a general duty to the public. I find the police duty to preserve life is engaged whenever it can be inferred that an individual is or may be in distress. On the facts of this case, the police conduct falls within their duty to preserve life, as provided for in the common law, and by statute.
The Justifiability
The justifiability of the officers' conduct depends on a number of factors, including the duty being performed, the extent to which some interference with individual liberty is
18
R v Stethem
Judgment
(THE COURT - continued)...
necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. In order for the search to be a justifiable use of powers associated with the duty to preserve life, the search must be "reasonably necessary" to carrying out that duty. The court must also consider whether there were less-intrusive alternatives available to the police, in determining whether a search was reasonable necessary.
In this case, Ms. Thake had approached the residence, and was unsuccessful in getting a response. She called the police for help, and related to them that the dog belonging to the residence was found some distance away, alone and injured, that no one had reported the dog missing, that the neighbour expressed some concern, and her observations at the residence were that there had been little human activity around the home, which was ascertainable from the snow tracks by the house. The police had no reason to doubt the veracity of what she told them.
The police then made their own observations of the residence. They observed that there was a vehicle parked in front of the front stairs to the residence, with wires or cables leading toward the home, there were no footprints leading to or from the house, suggesting that the home-owner might have been in the house for some
19
R v Stethem
Judgment
(THE COURT - continued)...
time and could be injured or deceased, and that the front door was not locked and had no door-knob, and, after announcing themselves and yelling, there was no answer. I find that the police had good reason to believe that someone in the residence could be injured or deceased.
If find it was necessary for the police to enter Mr. Stethem's residence, in order to determine if someone was in distress inside that residence. I find there was no other reasonable alternative to ensure that the occupant received any necessary assistance in a timely manner. Their entry was necessary for carrying out their police duty to preserve life, and it was reasonable.
In the first entry, the police limited their intrusion to searching for the occupant on the first floor. No occupant was found. The situation inside the residence was highly unusual. The residence was clearly being lived in, and was fully furnished. There were dirty dishes in the kitchen, a generator on the floor, and it was in a state of general disarray. Strangely, there were no lights and no heat. The surface of a fish pool had frozen over, and there were live fish swimming beneath the ice. The one plant inside the residence, on the kitchen counter, had frozen solid and died.
20
R v Stethem
Judgment
(THE COURT - continued)...
The stairs to the upstairs level of the residence were blocked off by plastic, but taped oddly from the outside - from the upstairs side of the plastic. This was found by Constable Sandhu to be strange, and it raised serious concerns for their own personal safety, as they felt the upstairs may be booby-trapped in some way, and that the occupant may in fact be upstairs, injured or deceased. They exited the residence to carefully consider their options, and to decide if they should continue their search for the occupant upstairs. They considered the issue as to whether they needed a warrant because of the drugs.
They called for assistance and advice from their sergeant, as they had not been in this situation before. They asked other officers to attend, because of their safety concerns with the upstairs. After careful consideration, the officers decided it was more important that they search for the occupant upstairs, as well. I find that was a reasonable decision in all the circumstances of this case.
I find it was justifiable that the officers
21
R v Stethem
Judgment
(THE COURT - continued)...
re-enter the residence to search the upstairs. The observations they made on the first floor confirmed to them that, in order for them to fulfil their duty of preserving life, it was reasonable to believe that there may in fact be someone injured or deceased upstairs. The residence looked recently lived in, but it had been left in a strange state. I find the plastic used to block off the stair entrance to the upstairs, and their concern about it, was
the principle reason that the officers exited the residence to consider if they should proceed to
re-enter, and search for the occupant upstairs.
The plastic barrier was taped from the outside, suggesting that it would have done from the upstairs side of the barrier. There were drugs in plain view. Their fear that the upstairs may be booby-trapped was reasonable, in the circumstances. It was also reasonable to believe that the occupant could have been upstairs, and injured or deceased.
I find it was necessary for the police to
re-enter Mr. Stethem's residence, in order to determine if someone was in distress inside the residence upstairs. The second search was therefore the logical extension of the first search. I find there was no other reasonable alternative to ensure that the occupant, who may be upstairs, received any necessary assistance in a timely manner. Their entry was necessary for carrying out their police duty to preserve life, and it was reasonable.
22
R v Stethem
Judgment
(THE COURT - continued)...
In the result, considering the totality of all the circumstances, I find that the Crown has established, on the balance of probabilities, that the two searches in this case were reasonable. It was justifiable for the police officers to conduct the two warrantless searches of Mr. Stethem's residence, to preserve and protect life, in what I find were exigent circumstances. The officers had reasonable
grounds and suspicions that something was wrong. The officers were motivated by legitimate safety concerns at the time of each entry. When the police entered, they simply did a cursory search of the premises, to make certain that no one was injured or needed assistance. I find they did not go beyond what was necessary and appropriate. Their conduct was justifiable, in all the circumstances.
The evidence found as a result of the searches is admissible in this trial. It is therefore unnecessary to consider the argument on s. 24(2) of the Charter.
If the evidence found pursuant to the searches is admissible, has the Crown proved, beyond a reasonable doubt, that Mr. Stethem possessed marihuana for the purpose of trafficking, contrary to s. 5(2) of the CDSA?
23
R v Stethem
Judgment
(THE COURT - continued)...
The Crown's position is that there are a number of factors that establish, beyond a reasonable doubt, that Mr. Stethem's possession of the drugs found in his residence, and on his person at the time of his arrest, was for the purpose of trafficking. These factors are:
(a) The sheer quantity of 1899 grams
of marihuana seized;
(b) That there were 20 packages of
marihuana;
(c) The packages were ziplok bags, ready
for distribution;
(d) The presence of many other ziplok
bags;
(e) The digital scale found on Mr. Stethem
at the time of his arrest; and
(f) The marihuana found on Mr. Stethem at
the time of his arrest.
However, there are other factors that support a reasonable doubt as to that purpose, and support a finding that Mr. Stethem's possession of the drugs and other items was for his personal use.
While the factors relied upon by the Crown are suggestive of an intent to traffic, many of the trappings of drug trafficking are missing in this case. The drugs were packaged in various, unusual, and inconsistent quantities. Mr. Stethem's residence was unlocked and insecure. The gate only prevented vehicles from entering, and it was easy to walk around. No weapons were found. No multiple cell phones were found. No debt lists were found. No large sums of money were found. Considerable paraphernalia, demonstrating his personal use, was found in the residence, and the drugs were in plain view. It is reasonable that the digital scale, on the facts of this case, could also be related to his personal used.
Mr. Stethem had documentation, at the time of his arrest, that he had begun the process of applying for a medical authorization for possession of dried marihuana. Approximately three months after these offences, Mr. Stethem in
24
R v Stethem
Judgment
(THE COURT - continued)...
fact received an authorization to possess dried marihuana for medical purposes, for the treatment of his chronic pain. As his authorizations have been renewed annually, the amount of marihuana he is entitled to possess has continued to increase, which is supportive of his continuing chronic pain. His current authorization and production license for marihuana for medical purposes is 83 indoor plants, and for indoor storage quantities of 3735 grams of dried marihuana, an amount far in excess of the 1899 grams seized on the date of these offences.
While I am mindful that possession for the purpose of trafficking charges can be proven in cases with medical marihuana certificate holders, on the totality of the evidence in this case, however, I have a reasonable doubt, based on the evidence, of the guilt of Mr. Stethem on the possession for the purpose of trafficking charges in Counts 1 and 2.
If the evidence found pursuant to the searches is admissible, and the court finds that the possession for the purpose of trafficking charges have not been proved, beyond a reasonable doubt, has the Crown proved, beyond a reasonable doubt, that Mr. Stethem was in simple possession of marihuana contrary to s. 4(1) of the CDSA?
The Crown has established, beyond a reasonable doubt, that Mr. Stethem is guilty of the included offence of simple possession in
25
R v Stethem
Judgment
(THE COURT - continued)...
Counts 1 and 2. The drugs were found in his residence. He admitted, in his statement, that he lived alone at the residence, and that the drugs were his. As at January 1

