ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14- 072
DATE: 20140619

BETWEEN:

Her Majesty The Queen

Elizabeth Barefoot, for the Crown

• and -

James Joseph Wyse

Jill Gamble, for James Wyse

HEARD: June 13, 16, 17 and 18, 2014

Conlan, J

REASONS FOR JUDGMENT

I. INTRODUCTION

1. Beauty abounds in Grey and Bruce Counties, but the rugged countryside conceals an ugly element of our bailiwick – dangerous and illegal marihuana grow operations.

2. James Wyse was tried before me, without a jury, in Owen Sound on June 13, 16, 17 and 18, 2014.

3. Mr. Wyse is facing two criminal charges. The Indictment provides as follows.

Count 1 – James Joseph Wyse stands charged that, between the 4th day of November, 2011 and the 20th day of December, 2011 at the Township of Chatsworth in the County of Grey in the Judicial Region of Central West, did unlawfully produce a substance included in Schedule II, to wit: cannabis marijuana, contrary to section 7(1) of the Controlled Drugs and Substances Act.

Count 2 - James Joseph Wyse stands charged that, between the 4th day of November, 2011 and the 20th day of December, 2011 at the Township of Chatsworth in the County of Grey in the Judicial Region of Central West, did unlawfully possess a substance included in Schedule II, to wit: cannabis marijuana, over 3 kilograms, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.

4. At the conclusion of the trial, I reserved my decision.

II. THE OFFENCES

5. Mr. Wyse is charged with unlawful production of cannabis marihuana. For me to find the accused guilty of that offence, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Wyse produced a substance;
ii. that the substance was marihuana;
iii. that Mr. Wyse knew that the substance was marihuana; and
iv. that Mr. Wyse intended to produce marihuana.

6. If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Wyse not guilty of the offence. 7. If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Wyse guilty of the offence.

7. Mr. Wyse is further charged with possession of cannabis marihuana, over three kilograms, for the purpose of trafficking. For me to find the accused guilty of that offence, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Mr. Wyse was in possession of a substance;
ii. that the substance was marihuana;
iii. that Mr. Wyse knew that the substance was marihuana; and
iv. that Mr. Wyse had possession of marihuana for the purpose of trafficking in it.

9. If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Wyse not guilty of the offence. 10. If Crown counsel has satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Wyse guilty of the offence.

III. THE NON-CONTENTIOUS FACTS

11. The investigation began in late September 2011, when the police received an anonymous tip about a possible marihuana grow operation at the subject property in Chatsworth Township, County of Grey.

12. The police suspect that the marihuana grow operation began in 2008.

In late September and in October and November 2011, the lead investigator, Detective Paul Smith of the Ontario Provincial Police (now retired), drove by the property several times to make observations.

13. On November 4 and 5, 2011, police executed a General Warrant at the property. A strong smell of marihuana was observed.

14. On November 8, 9, 10, 16, 17 and December 20, 2011, police surreptitiously watched the property from the bush and, on some occasions, took video of their observations. Persons were observed on and around the property, but not the accused.

15. By December 20, 2011, police had ample reason to believe that there was a marihuana grow operation in existence and, thus, executed a Search Warrant.

16. Police found two men (not the accused) inside the residence trimming marihuana bud. The house contained three rooms dedicated to the cultivation of marihuana.

17. Police found mature marihuana plants inside the nearby shed. A large industrial generator was being used to power the lights, fans and other equipment in the shed.

18. Fuel for the generator was obtained from two large tanks at the end of the driveway. On one occasion, police observed a man (not the accused) drive an ATV, towing a trailer, to the end of the driveway. Fuel was transferred from a tank at the end of the driveway to a tank on the trailer, via a hose.

19. There is no dispute that there existed a marihuana grow operation at the subject property in Chatsworth Township, County of Grey.

20. In total, 698 marihuana plants were found by the police (488 plants inside the residence and 210 plants inside the shed). In addition, police seized approximately eight pounds of marihuana bud and about 279 pounds of marihuana shake.

21. Besides the narcotics and equipment, police seized documentation including a journal detailing the marihuana grow operation, hydro records, fuel records and real estate documents.

22. Mr. Wyse was not found on the subject property when the police executed the search warrant on December 20, 2011. And he was never observed at the subject property by the police prior to that date.

IV. THE KEY ISSUE TO BE DECIDED

23. There is no dispute that there existed a marihuana grow operation at the property.

24. The issue is whether Mr. Wyse had anything to do with it.

V. THE EVIDENCE ON THE KEY ISSUE TO BE DECIDED

25. The Defence elected to call no evidence at trial.

26. The Crown’s evidence tying the accused to the subject property where the marihuana grow operation was located is circumstantial. It consists of the following.

Police Evidence

27. First, Ontario Provincial Police Officer Chris Dunn helped execute a search warrant at the residence of Brian Atkins in Beamsville, Ontario on December 20, 2011.

28. Mr. Atkins had been found inside the residence when the police executed a search warrant at the subject property in Chatsworth.

29. In Beamsville, Dunn, as the exhibits officer, took possession of two documents titled “Trust Agreement” (exhibits 9 and 10) to which Mr. Wyse was a named party. The documents were found by the police inside Atkins’ residence. The documents are dated November 2009 and constitute what appears to be an agreement between Mr. Wyse and Darrell Deblauw concerning a property located on Side Road 4B in Chatsworth Township (not the subject property where the marihuana was found by the police).

30. Second, Durham Regional Police Service Officer Robert Hawkes also helped execute the search warrant at the residence of Brian Atkins in Beamsville, Ontario on December 20, 2011.

31. Inside Atkins’ residence, Hawkes found an Agreement (exhibit 12) between Atkins and Mr. Wyse relating to the subject property in Chatsworth, dated September 26, 2007. The Agreement is signed and commissioned. Among other things, it indicates that the two men were equal partners. Further, Hawkes found a handwritten document (exhibit 13) which refers to persons named Ron, Cathy, Brian and Jim.

32. Persons named Ron Potter, Kathy Knox and Brian Atkins had been seen by the police at the subject property in Chatsworth. Mr. Wyse’s first name is James.

33. Third, Ontario Provincial Police Officer John Lyall, of the Provincial Asset Forfeiture Unit, was at the subject property in Chatsworth on December 20, 2011.

34. Inside a Ford F150 pick-up truck registered to one Jamie Chessie of Beamsville, Lyall found insurance slips for the truck in the name of Mr. Atkins. Lyall also found an invoice (exhibit 14), dated December 16, 2011, for freight charges and with Mr. Wyse’s name on it.

35. Jamie Chessie and Brian Atkins appeared, from the documentation found inside the Ford F150 truck, to have the same address in Beamsville, Ontario.

36. Fourth, Ontario Provincial Police Officer John Devine helped execute the search warrant at the subject property in Chatsworth on December 20, 2011.

37. From a shelf in the kitchen, Devine seized a key tag (exhibit 18) with the name “Wyse” handwritten on the back.

Evidence from Fuel Companies

38. Fifth, Stephen MacDonnell, the General Manager of MacDonnell Fuels Limited in Rockford, Ontario, testified that Brian Atkins and Jamie Chessie, spouses of one another, had an account with the company. Fuel purchases were made on that account between January 2008 and April 2011 (exhibit 20).

39. There is no evidence from Mr. MacDonnell, testimonial or documentary, as to whether those fuel purchases were for the specific subject property in Chatsworth.

40. Sixth, Donald Graham, manager of Huron Bay Co-operative Incorporated, testified that an account with the company was opened in the name of the accused in June 2008. Fuel purchases were made on that account between October 2009 and January 2011 (exhibit 21).

41. Exhibit 21 includes a credit application in the name of the accused and various addresses for the accused, one of which is the subject property in Chatsworth, identified on the document by its fire number – 621763.

42. Mr. Graham did not provide any evidence, testimonial or documentary, as to whether those fuel purchases were for the specific subject property in Chatsworth.

43. Mr. Graham has never met Mr. Wyse. He could not identify him in the Courtroom.

44. Seventh, Adam Baczynski, office manager of McRobert Fuels Limited, testified that a credit application with the company was completed in the name of the accused in October 2007 (exhibit 23). In January 2008, a separate credit application was completed in the name of Brian Atkins.

45. With regard to the account in the name of Atkins, furnace oil and marked diesel were purchased and delivered between July 2008 and July 2010 (exhibit 22). In addition, cardlock facility purchases of marked diesel from the company’s Hanover, Ontario site were made between August 2010 and June 2011.

46. Regarding the account in the name of Mr. Wyse, marked diesel was purchased and delivered between October 2008 and July 2011 (exhibit 22).

47. There was also a company account in the name of Mr. Potter and Ms. Knox, whom had been seen at the subject property by the police prior to the execution of the search warrant on December 20, 2011. On that account, marked diesel was purchased and delivered between December 2009 and April 2011 (exhibit 22).

48. Mr. Baczynski did not provide any evidence, testimonial or otherwise, as to whether any of those fuel purchases on any of those accounts were for the specific subject property in Chatsworth.

49. Mr. Baczynski has never met Mr. Wyse. He did not identify him in the Courtroom.

50. Eighth, Scott Eldridge, a fuel delivery driver for Huron Bay Co-Operative Incorporated, testified that he made several deliveries, on an account in the name of the accused, to a property located on Side Road 7 in Sullivan (now Chatsworth) Township. No address was given by Mr. Eldridge.

51. In terms of where he delivered the fuel, Mr. Eldridge described a red coloured fuel storage tank and a small shed near the end of a winding, steep grade downhill driveway. There were motion detectors that he could see. On one occasion, he was met by three middle-aged males on the property and could hear a generator running.

52. We know from the police evidence that power to the shed on the subject property was supplied by a large industrial generator, although I have no reason to believe that running a generator on a rural property is something unique.

53. Of course, Mr. Eldridge’s description of the property in question is only valuable to me if there is other evidence at trial which coincides with that description, such that I could conclude that the property where Eldridge delivered the fuel is indeed the subject property where police found the marihuana grow operation.

54. Mr. Eldridge always dealt with a fellow named Ron, except on the very first occasion when he met an unknown man at the property. That unknown man was operating an ATV and towing a trailer with a tank on it. The man asked Eldridge to fill both the tank on the trailer and the red tank near the end of the driveway.

55. Mr. Eldridge, in cross-examination, changed his evidence as to how many deliveries he made to this property (from about a dozen to seven) and when the deliveries started (from the winter of 2008/2009 to October 2009).

56. I disagree with the Crown that Mr. Eldridge was not inconsistent on those two points.

57. Mr. Eldridge has also dealt with Ron at another property on Side Road 4B in Chatsworth, about 15 kilometres away from the property with the red storage tank at the end of the driveway. No address or description of the property on Side Road 4B was given by Eldridge to draw a link to the property referred to in exhibits 9 and 10 – the agreement between Wyse and Deblauw.

58. Mr. Eldride did not identify Mr. Wyse in the Courtroom. Mr. Eldridge cannot say whether he has ever seen the accused before or specifically whether he ever saw or met him at the property where Mr. Eldridge delivered the fuel, on Side Road 7.

Evidence regarding the Tractor

59. Ninth, Jeffrey Williamson, former salesman and co-owner of Markdale Tractor Sales, testified that he met two men in December 2007 who identified themselves as Jim Wyse and Brian Atkins. Mr. Wyse bought a tractor like the blue coloured New Holland one shown in the colour photographs marked exhibit 1 at trial.

60. Mr. Williamson cannot say whether the tractor shown in the photographs is the one purchased by Mr. Wyse. Williamson sold a lot of those tractors around the same time.

61. Wyse told Williamson that Atkins was Wyse’s brother-in-law. Wyse also said that he lived in the Hamilton area – he might have said Beamsville.

62. Williamson delivered the tractor to a rural property southwest of Desboro, Ontario, about 1 kilometre east of the village of Peabody. It was dropped off near the end of the driveway.

63. Officer Lyall, in describing where police had executed the search warrant on December 20, 2011, said that the property was located southwest of Desboro.

64. Williamson met the man he believed to be Mr. Wyse when the tractor was delivered. Williamson described the man only as someone in his late 40s or early 50s.

65. According to Ontario Ministry of Transportation documents filed at trial, the accused would have been older than that at the time.

66. When Mr. Williamson was shown the photo in exhibit 1 of the area near the end of the driveway, Mr. Williamson did not recognize it or the outbuilding shown in it. And Mr. Williamson’s description of the standard one-car garage with a roll-up door does not appear to be similar to the derelict outbuilding shown in the first couple of photos in exhibit 1.

67. The man calling himself Mr. Wyse told Williamson that the garage on the property was powered by a generator.

68. We know from the police evidence that power to the shed on the subject property was supplied by a large industrial generator, although, as I said before, I have no reason to believe that running a generator on a rural property is something unique. And I do not know whether the tractor was delivered to the subject property.

69. Williamson was a candid witness at trial. In cross-examination, he acknowledged that he never saw photo identification from either men believed to be Wyse and Atkins; that he cannot deny the possibility that he delivered the tractor to Atkins; that he cannot identify the accused in the Courtroom as the man he thought was Mr. Wyse; and that he cannot recognize the voice of the accused or of the man he believed to be Mr. Wyse.

70. I was impressed with the honesty of Mr. Williamson.

The UPS Folder and the Brown Bag

71. Tenth and finally, Detective Constable Charlie Rau of the Ontario Provincial Police, who helped execute the search warrant at the subject property on December 20, 2011, testified about a UPS shipping folder that he found inside a cupboard above the microwave in the kitchen.

72. The folder and its contents are marked exhibits 25 and 25A and following.

The label on the shipping folder is dated July 13, 2010 and shows the name Jim Wyse and a Beamsville address. That Beamsville address and the company name associated with it, Jamine Inc., are consistent with information which appears on one of the fuel credit applications in the name of Mr. Atkins.

73. The folder’s contents include numerous instruction and operating manuals for equipment such as generators and a New Holland tractor.

74. We know from the police evidence that similar equipment was found at the subject property. At its highest for the Crown, it can be safely said that a UPS folder shipped to Wyse in Beamsville in July 2010, some 17 months prior to the discovery of the marihuana grow operation, contained manuals for previously purchased equipment that could have been but not necessarily must have been used for marihuana cultivation purposes.

75. Exhibits 26 and 26A and following are a brown bag and its contents, also found by the police while searching the subject property on December 20, 2011.

76. The bag’s contents include (i) a Food Basics receipt dated December 16, 2011 with the name “James” written on it, twice; (ii) Chatsworth Township tax statements from late 2011, addressed to Darrell Deblauw; (iii) a draft Statement of Claim between the accused, as Plaintiff, and Deblauw, as Defendant, dealing with a property in Chatsworth (not where the marihuana grow operation was found); (iv) numerous handwritten documents and notebooks with numbers, with names such as Jim, Brian, Ron, Cathy, Mike and Wayne, and with references to the words “mortgage” and “hydro” and “tractor” and what appears to be multiple properties; (v) a void cheque in the name of Deblauw; and (vi) a Hydro One bill for the subject property, dated December 2011, addressed to Brian Atkins.

The Map of the Area in Grey County

77. Through Rau’s testimony, the Crown filed as exhibit 27 a map showing various things including verification that the subject property where the marihuana was found is located south and slightly west of the Town of Desboro, Ontario, in the general vicinity described by other witnesses at trial including Officer Lyall, in terms of where the search warrant was executed by the police on December 20, 2011, and Mr. Williamson, in terms of where he delivered the tractor.

VI. THE POSITIONS OF COUNSEL

The Crown

78. In her closing submissions at trial, Ms. Barefoot very nicely and succinctly put forward the theory of the Crown.

79. Mr. Wyse’s fingerprints are all over this marihuana grow operation.

80. The evidence proves that the accused was closely connected to the other parties involved, including Brian Atkins, Ms. Knox and Mr. Potter. These persons were essentially co-conspirators, which is why the Crown filed the decision of the Court of Appeal for Ontario in Regina v. Parrot, [1979] O.J. No. 4500.

81. Mr. Wyse had similar secret agreements respecting two different rural properties in Chatsworth Township, one with Atkins and the other with Darrell Deblauw (the latter dated November 2009 and dealing with the property located on Side Road 4B: exhibit 10).

82. It is no coincidence that Wyse made these secret agreements with Atkins and Deblauw.

83. Atkins and Wyse were the “brains” behind the marihuana grow operation at the subject property.

84. The accused knew full well what was going on at the subject property. That is the only reasonable inference to be drawn from the totality of the proven facts. As such, he ought to be found guilty of both offences that he is facing.

The Defence

85. Simply put, as usual by Ms. Gamble, according to the Defence, the Crown has not proven these charges beyond a reasonable doubt.

86. That Mr. Wyse knew about the marihuana grow operation is not the only reasonable inference to be drawn by the Court from the proven facts. And knowledge is an essential element of both offences.

VII. ANALYSIS

87. I must assess the strength of the Crown’s case taking in to account the totality of the evidence.

88. I ought not to engage in some piece-meal examination of every item of circumstantial evidence to gauge whether that, by itself or even in combination with only select other evidence, amounts to proof beyond a reasonable doubt.

89. I will use the closing submissions by the Crown to frame my factual findings below.

Findings of Fact

90. As argued by the Crown, I accept that there was a relatively strong connection between Brian Atkins and Mr. Wyse. The totality of the documentary evidence, alone, establishes that fact, most principally exhibit 12 – the agreement between Atkins and Wyse dated September 2007.

91. As argued by the Crown, having regard to the real estate documents marked exhibits 15 and 16 and the Hydro One bill in the name of Atkins marked exhibit 26W, I accept that exhibit 12 relates to the same property where the marihuana was found by the police, although more than four years later.

Consequently, I accept that Mr. Wyse had a connection to the subject property which began, at least, in September 2007.

92. As argued by the Crown, I accept that the fuel credit applications with the various companies which are in the name of the accused were in fact completed by or with the knowledge of Mr. Wyse. There are too many personal and accurate bits of information in those documents, such as birth date, driver’s licence number and addresses to name just a few, to conclude otherwise.

93. Thus, we know from exhibit 21 that Mr. Wyse’s connection to the subject property still existed in June 2008, when he applied for credit with Huron Bay Co-Operative Incorporated and included on the face of the application form as an address the fire number of the subject property.

94. I accept that Mr. Williamson sold a tractor to Mr. Wyse, however, I am not prepared to find that it was the tractor shown in the photos marked exhibit 1 or that it was delivered to the subject property. On the former, Mr. Williamson himself is not certain. On the latter, Mr. Williamson’s unfamiliarity with the first two photos as part of exhibit 1 and his significantly different description of the area where he dropped off the tractor make me uneasy about speculating in the way urged by the Crown. The fact that Mr. Williamson described a location in the general vicinity of the subject property does not obviate my uneasiness.

95. As argued by the Crown, I accept that there was a relatively strong connection between Darrell Deblauw and Mr. Wyse. The totality of the documentary evidence, alone, establishes that fact, most principally exhibits 9 and 10 – the agreement between Deblauw and Wyse dated November 2009.

96. Consequently, I accept that Mr. Wyse had a connection to the property on Side Road 4B in Chatsworth Township which began, at least, in November 2009.

97. I disagree with the Crown’s assertion that these agreements that Mr. Wyse made with Atkins and Deblauw were “secret”. They were reduced to writing. They were obviously kept for years. In the case of exhibit 12, it was commissioned by someone at a local law office. In the case of exhibits 9 and 10, a public lawsuit was contemplated, as evidenced from exhibit 26E.

98. Besides, neither agreement, on its face, is in any way incriminating. And there is no evidence that anything illegal occurred at the Side Road 4B property.

99. As argued by the Crown, I accept that at least some of the handwritten notes and documents marked exhibits 26F through 26U refer to Mr. Wyse (“Jim”) and Mr. Atkins (“Brian”), Mr. Potter (“Ron”) and Ms. Knox (“Cathy” or “Kathy”).

100. Consequently, I accept that the accused had connections to Potter and Knox.

101. Given where these documents were found and the other contents of the brown bag, to conclude otherwise would stretch the meaning of coincidence to the point of absurdity.

102. But it must be said that there is nothing nefarious in those said handwritten notes and documents.

103. I do not accept the Crown’s argument that fuel was delivered to the subject property by any of the companies mentioned. The Crown concedes that none of the fuel documentation from any of the companies indicate a specific address of where the fuel was delivered. There is a complete paucity of evidence about a physical description of the subject property such that I can correlate that with what Mr. Eldridge described. Mr. Eldridge gave no address for the property with the red fuel tank at the end of the driveway.

104. All that I can safely say is that fuel was delivered to a place in the general vicinity of the subject property.

Has the Crown Proven the Charges Beyond a Reasonable Doubt?

105. Having made the factual findings outlined above, and having considered the admissions made by the Defence, I am unable to accept the Crown’s penultimate submission that the only reasonable inference to be drawn is that the accused knew about the marihuana grow operation. I say that for these reasons.

106. First, exhibit 12 pre-dates when the police suspect that the marihuana cultivation began. And there is nothing facially incriminating about exhibit 12.

107. Second, the totality of the proven facts is equally consistent with another completely innocent explanation. That competing reasonable inference is that Mr. Wyse was himself the victim of illegal activity on a property that he had an interest in, which activity he was unaware of.

108. Not only was the accused never seen and not found by the police on the subject property, despite a lengthy police investigation and multiple days of police surveillance, there is no reliable evidence that he was ever seen by anyone in or even near all of Grey County since he bought the tractor from Williamson in December 2007, some four years before the marihuana grow operation was discovered by the police.

109. Yet everyone else material to the Crown’s theory was seen or found by the police at the subject property, including Atkins, the other alleged “brains” of the operation.

110. The evidence of Eldridge that he assumes that the man at the subject property on the first fuel delivery was the accused is worthless, both because of its bald generic nature and because I am not even sure that delivery was to the subject property.

111. The proven facts are not inconsistent with or incapable of leading to the reasonable inference that Mr. Wyse had an interest in the subject property; he had financial and property-related connections with Atkins, Potter, Knox and Deblauw; but he did not know that marihuana was at the subject property.

112. In fact, the evidence does not establish that Wyse’s interest in the property necessarily existed around the time of the offence period.

113. Further, the evidence does not link Wyse to any illegal activity at the property, like it does with Potter, Knox, Atkins, McKechnie and Langsford.

114. In addition, the evidence does not place Wyse stepping foot within a hundred miles of the subject property in the four years preceding the discovery of the marihuana by the police.

115. I have my suspicions, but as we tell juries, proof of probable or likely guilt is not enough. I have to be sure.

116. I am not sure that the accused knew about the marihuana grow operation. It follows that I am not sure that he either unlawfully produced or unlawfully possessed cannabis marihuana, whether as a principal perpetrator or as a party.

117. Ms. Barefoot’s very competent marshalling of the evidence and her well-prepared submissions made this case a closer call than what it may otherwise have been, but in the end Ms. Gamble is correct – the charges have not been proven beyond a reasonable doubt.

118. It is certainly possible for the Crown to prove the guilt of an accused who is an absentee owner of a property which contains a marihuana grow operation, however, this is not one of those cases.

VIII. CONCLUSION

119. Criminal prosecutions involving circumstantial evidence are like puzzles. As each piece of evidence is added to the puzzle, the overall picture becomes clearer to the reasonable observer.

120. The picture in this case remains unclear.

121. I find Mr. Wyse not guilty of unlawful production of cannabis marihuana – count 1.

122. I find Mr. Wyse not guilty of possession of cannabis marihuana for the purpose of trafficking – count 2.

123. I wish to thank Ms. Barefoot and Ms. Gamble for their able assistance throughout the trial.

The Honourable Mr. Justice C.J. Conlan

Conlan J.

Released: June 19, 2014