Court File and Parties

COURT FILE NO.: CR-15-002 DATE: 20160518 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Arthur John Blackwood Defendant

Counsel: David Holmes, Counsel for the Crown John Raftery, for the Defendant, Arthur John Blackwood

HEARD: May 16, 17, 18, 2016

Reasons for Judgment

E.J. Koke J.

Introduction

[1] Arthur John Blackwood is charged with a number of offences involving the production, possession and trafficking of marijuana under the Controlled Drugs and Substances Act (the “CDSA”). These charges include the following:

Count 1: Production of marijuana, contrary to the section 7(1) of the CDSA; Count 2: Possession of marijuana for the purpose of trafficking, contrary to section 5(2) of the CDSA (more than 30 kg.); Count 3: Possession of marijuana, contrary to section 4(1) of the CDSA (less than 30 kg); Count 5: Possession of ammunition while prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code of Canada; Count 6: Possession of proceeds of crime, contrary to section 354 (1) (a) of the Criminal Code (not exceeding $5000.00);

[2] Mr. Blackwood pleaded guilty to count 3 (Possession of marijuana) and not guilty to the other counts.

[3] During closing submissions the court was advised that Mr. Blackwood had also intended to plead guilty to count 1, which is the Production of marijuana charge, but through inadvertence he pleaded not guilty instead. I therefore deem him to have now plead guilty to this offence as well.

[4] The only charges remaining to be dealt with are counts 2; 5; and 6. Count 4 was withdrawn at the request of the Crown.

Relevant Facts

[5] Acting on a search warrant, members of the Ontario Provincial Police paid Mr. Blackwood a surprise visit on January 16, 2014 and arrested him by his mailbox outside of his rural home in McMurrich /Monteith Township.

[6] Following his arrest Mr. Blackwood was cooperative with the police. Officer Kraemer, who was the lead investigator, reports that on the way back to the house he had a conversation with Mr. Blackwood in which Mr. Blackwood did not deny that he was growing marijuana. Mr. Blackwood informed that he had planned to stop growing the previous fall, but then changed his mind and decided instead that he would stop growing the following April. He also mentioned that he expected that he would be going to jail and lose his house. He questioned out loud why this was happening to him, and said: “I’m a good guy and I only sell to good guys, there’s lots of bad guys out there why don’t you get them” [quote from Officer Kraemer’s notes].

[7] Mr. Blackwood assisted the police by identifying areas in the house where the police could find marijuana.

[8] A search of his bungalow revealed three trays of plants in what was described as a “closet” on the main floor. The plants in this room were grown under a fluorescent light. The closet contained 245 plants. Officer Kraemer believes these were not yet “self-sufficient”. Photographs of these plants revealed that they appeared to be cuttings which were held in place by being inserted in what appeared to be perforations in a piece of spongy material stretched over trays filled with a liquid mixture of water and fertilizer. Officer Kraemer was not sure whether they had rooted.

[9] The police also discovered three growing rooms in the basement which the police identification officer referred to as rooms G2, G3 and G4.

[10] The police counted 88 plants growing in G2, 94 plants growing in G3 and 24 plants growing in G4, for a total of 206 plants. The plants in rooms G2 and G3 were also small but were described by Officer Kraemer as taller than the plants he discovered upstairs, “but not a lot”. He testified that it appeared that these plants had just been re-planted. The 24 plants in room G4 were fully mature plants.

[11] Mr. Blackwood testified that the three trays in the closet contained cuttings which he referred to as clones. He had planted these the evening prior to his arrest. According to Mr. Blackwood these cuttings take 2 to 4 weeks to root and the survival rate is low…sometimes no more than 50% of the plants survive. The plants in the rooms G2 and G3 were at the next or later stage of development and he expected that these had now rooted. A number of these plants had yellowed leaves and he did not expect all of these plants to survive but was not able to clarify how many of these he expected would survive. The 24 plants in room G4 were what he referred to as the mother plants, which are the plants from which cuttings are taken.

[12] Some dried and processed marijuana was also located. Twenty eight grams were located in a kitchen cupboard and a total of 645 grams were located in three plastic bags in the freezer compartment of the fridge. Four hundred and forty grams of shake were discovered in paper bags in one of the bedrooms.

[13] Items and equipment necessary to grow marijuana plants were also located. These included 5 high density bulbs used to generate light, 24 unused or spare high density bulbs, four ballasts used to operate the bulbs and two spare ballasts.

[14] The search of the house also revealed a number of items which the police alleged constituted “indicia of trafficking”. These items included a quantity of paper bags, six one hundred dollar bills and ten fifty dollar bills in a coat pocket, and a cell phone. The police also discovered a working digital scale in an upper kitchen cabinet and a white grinder in a lower kitchen cabinet which appeared to have some marijuana residue remaining on it. Two screens, presumably for drying marijuana, and a dehumidifier were located in a bedroom on the main floor.

[15] Following his arrest Mr. Blackwood was lodged in the cells at the neighbouring police detachment in Almaguin Township. The following day, April 17, 2014 he was driven to bail court in Parry Sound by OPP Officer Louise Maki in her cruiser. Officer Maki testified that on the drive to Parry Sound she asked Mr. Blackwood if he expected someone to attend on his behalf as a surety in Bail court. The following is Mr. Blackwood’s response to this question, as later reported by Officer Maki in her police notebook:

…he got slightly upset that he didn’t have anyone that would be at court to help in with bail – he stated that he was going to stop in another year but had to pay the bills + for his house somehow because he couldn’t get a job + growing paid bills – said jobs around here only pay 20 -30 thousand a year + he had to pay bills – said it was only marijuana and it was no big deal – went on about the gov’t not doing things right + he believed everyone should be paid equally - said he knows he did it + has to pay the consequences but again states he had to pay the bills – when getting lodged at court after bail was put over to Monday, January 20, 2014 he said he has smoked for 20 years every day (marijuana).

[16] While conducting their search the police officers discovered 4 twelve gauge shotgun shells in a broken dresser in a main floor bedroom. They also discovered 17 rounds of 38 calibre bullets in a plastic bag with OPP markings, together with eight 22 calibre bullets in a dresser drawer in another bedroom on the main floor.

[17] On September 30, 2008 a Justice of the Ontario Court of Justice imposed a lifetime prohibition order on Mr. Blackwood, prohibiting him from possessing, among other things, ammunition.

Analysis

1) Count 2: Possession for Purposes of Trafficking

[18] Mr. Blackwood submits that he grew the marijuana for personal use only. He is 56 years old, suffers from chronic pain and does not trust conventional medicine. He has smoked marijuana on a daily basis for more than 20 years and he testified that doing so helps him deal with his physical ailments.

[19] In support of his position that he does not grow marijuana for trafficking purposes he points to the absence of the usual indicia of trafficking, such as debt lists and small plastic bags or other packaging materials as evidence that he was not a dealer. He also points out that during the two days of surveillance which preceded his arrest the police noted that only one person visited his house.

[20] I accept that Mr. Blackwood is a heavy marijuana user and personally consumes much of the marijuana which he grows. However, for the following reasons I find that he also traffics in marijuana.

[21] Firstly, Officer Maki was a very compelling witness. She recorded Mr. Blackwood’s comments to her about growing marijuana to “pay the bills” in her notebook shortly after they were made. The only common sense interpretation which I can give to his comments was that Mr. Blackwood needed the income which was generated through the sale of marijuana to meet his living expenses.

[22] Officer Maki’s testimony is supported by the testimony of Officer Kraemer who was told by Mr. Blackwood that he “only sells to good guys”.

[23] Secondly, Mr. Blackwood has not had a conventional job which paid him a regular salary since he moved to his present location from Orangeville in 2001. This is a period of 15 years. He testified that since moving to McMurrich – Monteith Township he has existed on his savings, by cutting some wood and performing odd jobs for neighbours and through the generosity of his parents, who are now deceased. He does not file income tax returns because he earns so little money.

[24] Mr. Blackwood admitted he has a $100,000 mortgage on his house, and that he requires money to pay for everyday expenses such as food, hydro, municipal taxes, and vehicle expenses. The evidence supports the conclusion that the only way which Mr. Blackwood can meet his living expenses is through the sale of marijuana.

[25] Thirdly, a total of 451 marijuana plants were found growing in Mr. Blackwood’s home. In addition, there were 645 grams of cannabis marijuana bud in the kitchen freezer, 28 grams of bud in a cupboard and 440 grams of marijuana shake in the drying room. Marijuana has a limited shelf life and quite clearly this amount of marijuana is far in excess of what a single person can consume.

[26] I am not troubled by the fact that some of the indicia which are usually associated with trafficking were not located in the house. The plants which were discovered by the police were either cuttings or recent cuttings which had just rooted. The residence in which these little plants were located is a very small building. It is inconceivable to me that there would be enough room in this small building to house such a large number of plants once they reach maturity. Also, I noted that there was not enough equipment such as grow tables and high intensity lighting to bring this many plants to full maturity.

[27] Crown counsel suggested that Mr. Blackwood may have been a wholesaler of the plants in his home. I agree and in my view Mr. Blackwood’s grow operation gave every appearance of being a first stage grow operation, with the intention being to move the plants to a larger outdoor or more sophisticated indoor location in the spring or early summer. In that case, it is likely that the plants would also have been harvested, processed and distributed at a different location.

[28] I find Mr. Blackwood guilty of Possession of Marijuana for the purpose of Trafficking.

2) Count 6: Possession of Proceeds of Crime, contrary to [section 354 (1) (a) of the Criminal Code](https://laws-lois.justice.gc.ca/eng/acts/c-46/page-100.html#docCont)

[29] The police discovered 6 one hundred dollar bills and 10 fifty dollar bills in a coat pocket in the living room. This is a total of $1100.00 and the Crown alleges that this money constitutes the proceeds of crime.

[30] Mr. Blackwood submits that he won $10,000 in a lottery the year before his arrest and this money represented some of the money left over from this lottery.

[31] Although I am somewhat skeptical about Mr. Blackwood’s claim that this money represents the proceeds from a $10,000 lottery win, I am also not convinced that the Crown has established, beyond a reasonable doubt, that the money represents the proceeds from the sale of marijuana. The evidence indicates that Mr. Blackwood did have some other sources of income. The sum of $1100 is not such an unreasonably large amount of money that it cannot be considered to have been kept available to meet day to day expenses. I might view it differently if it had not been in a coat pocket but in a drawer which also contained a quantity of processed marijuana, or if it consisted of an amount far greater than what would be required to meet every day expenses.

[32] Accordingly, I find Mr. Blackwood not guilty of Possession of the Proceeds of Crime.

3) Count 5: Possession of Ammunition

[33] Mr. Blackwood submits that the ammunition which was discovered in his house was left there by a friend who boarded with him for a while. It was there at the time the prohibition was made.

[34] Mr. Blackwood maintains that he hates guns and has no use for them. He owns a pellet rifle which he uses for target practice but has no use for firearms of any kind. Furthermore, if the neighbours heard him shoot a firearm this would likely result in police attending at his house.

[35] Crown and Defence agree that possession requires both knowledge and control and that Mr. Blackwood had knowledge that the ammunition existed in his house. The Crown argues that Mr. Blackwood also had control of the ammunition. Exercising control would have entailed making arrangements to remove the ammunition from the residence. Mr. Blackwood failed to exercise such control and therefore he should be found guilty of this offence.

[36] The Defence argues that since Mr. Blackwood did not bring the ammunition into the house in contravention of the prohibition order, his failure to take steps to remove the ammunition means that he did not have the requisite control over the ammunition. According to the defence, control is only present when it is exercised. In other words, although Mr. Blackwood had knowledge, he did not exercise control of the ammunition and therefore cannot be said to be in possession of the ammunition.

[37] I disagree with the defence interpretation of what constitutes control. In my view the word “control” when used in the context of the word “possession” means having the “power” or “authority” to make decisions or deal with the subject matter of the possession. The failure to exercise power is not the same as the absence of power. In this case, Mr. Blackwood owned the residence in which the ammunition was stored. He was the only resident for many years. He was in possession of the ammunition because he had knowledge of its existence and he was empowered, by virtue of his ownership of the house to arrange for its removal. He failed to exercise the power he held and accordingly, I find him guilty of Possessing Ammunition contrary to the Prohibition Order of the Ontario Court of Justice dated September 30, 2008.

Decision

[38] For the above reasons, I find Mr. Blackwood guilty of Counts 1; 2; 3 and 5 of the Indictment.

Justice E.J. Koke (SCJ) May 18, 2016