Court File and Parties
COURT FILE NO.: CR-15-002 DATE: 20160624 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: June 24, 2016
Reasons for Sentence
E.J. Koke J.
Introduction
[1] On May 18 of this year Arthur John Blackwood was convicted of the following four offences:
a) Production of marijuana, contrary to the section 7(1) of the Controlled Drugs and Substances Act (the “CDSA”); b) Possession of marijuana for the purpose of trafficking, contrary to section 5(2) of the CDSA; c) Possession of marijuana, contrary to section 4(1) of the CDSA; d) Possession of ammunition while prohibited from doing so by reason of an order made pursuant to section 109 of the Criminal Code of Canada;
The Circumstances of the Offences
[2] The facts and circumstances surrounding these offences were set out in my reasons for judgment. I will repeat the more salient facts to give context to my sentencing decision.
[3] Acting on a search warrant, members of the Ontario Provincial Police arrested Mr. Blackwood outside of his rural home in McMurrich/Monteith Township on January 16, 2014.
[4] Following his arrest Mr. Blackwood was cooperative with the police. Officer Kraemer, who was the lead investigator, reports that 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].
[5] Mr. Blackwood assisted the police by identifying areas in the house where the police could find marijuana.
[6] 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 spongy material stretched over trays filled with a liquid mixture of water and fertilizer. Officer Kraemer was not sure whether they had rooted.
[7] The police also discovered three growing rooms in the basement which the police identification officer referred to as rooms G2, G3 and G4.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] On September 30, 2008 a Justice of the Ontario Court of Justice had imposed a lifetime prohibition order on Mr. Blackwood, prohibiting him from possessing, among other things, ammunition.
[13] Mr. Blackwood testified 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.
[14] 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. He pointed out that if the neighbours heard him shoot a firearm this would likely result in police attending at his house, which is something he did not want to happen.
[15] There is no evidence that firearms were located on the premises or that Mr. Blackwood owned any firearms.
Circumstances of Mr. Blackwood
[16] Mr. Blackwood is 56 years old. He suffers from chronic pain and does not trust conventional medicine. He testified that he has smoked marijuana on a daily basis for more than 20 years and that this has helped him to deal with his physical ailments. He testified that he has applied for a licence to use marijuana and he has been informed that such a licence will be available to him within a week.
Impact of Mr. Blackwood’s Conduct on the Community
[17] There has been an ongoing debate in Canada concerning the alleged harmful health effects of marijuana. Quite apart from this debate, it should be clear to everyone that the trafficking of drugs takes place in an environment which is associated with a culture of violence.
[18] The Supreme Court of Canada addressed the issue surrounding illicit drug trafficking in the 1998 case of Pushpanathan v. Canada , [1998] 1 S.C.R. 982 where Bastarache J., speaking for the majority stated at paragraphs 88 through 91:
In the face of all of this evidence, it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by the trafficking of illicit drugs. Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect the widespread harm caused by these activities.
The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity.
In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra, at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (ibid., p. 91). Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of Substance Abuse in Canada, supra, at p. 6).
These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.
Legal Parameters:
[19] The Controlled Drugs and Substances Act provides that someone who is convicted of possessing marijuana for the purpose of trafficking is liable to imprisonment for life.
[20] If convicted of possession of marijuana in the quantity found in this case, a person is liable to imprisonment for life.
[21] Section 7(1)(b)(iii) of the CDSA provides that if the subject of the offence is the production of marijuana and the number of plants is more than 200 and less than 501, a person is liable to a minimum punishment of imprisonment of 1 year.
Mandatory/Minimum Considerations
[22] Parliament has made the offence of Unlawful Production of Cannabis Marijuana deserving of the application of a mandatory minimum period of imprisonment. As noted, the minimum period of imprisonment is one (1) year if the number of plants produced is more than 200 and less than 501.
[23] Mr. Blackwood argues that in the circumstances of this case the mandatory minimum section does not apply. In making this argument he relies on the decision of Justice Bird of the Ontario Superior Court in the case of R. v. Li, [2016] O.J. No. 1371 in which she expressed her view that “a marijuana seedling becomes a plant within the meaning of Section 7 of the CDSA when it has taken root”.
[24] Mr. Blackwood asks that I exclude from the overall count of marijuana plants the 245 plants which were found in the closet because the Crown has failed to prove that they had rooted. I agree that there is no evidence before the court that these newly planted cuttings had roots. This leaves the 206 plants found in rooms G2, G3 and G4 available for the total count. Mr. Blackwood argues that there is no evidence that the plants in rooms G2 and G3 had rooted. However, at trial Mr. Blackwood testified that he expected that the plants in rooms G2 and G3 had rooted. He was the grower of these plants and accordingly I find that they had roots. I find as well that the mother plants in room G4 had rooted.
[25] Mr. Blackwood argues that some of the plants discovered in rooms G2 and G3 were in poor condition and may not have lived to full maturity and the total count should be reduced to less than 200 to reflect this fact.
[26] The Crown argues that I should not accept Justice Bird’s view of when a seedling evolves into a plant. It argues that instead I should accept the views of Justice R.G. Selkirk of the Ontario Court of Justice as set out in R. v. Machula [2014] O.J. No. 4262.
[27] In the Machula case Justice Selkirk rejected the argument that a plant must have roots in order to be included in the section 7 (2) (b) count. After considering case law on cultivation and production, as well as foreign cases, Justice Selkirk wrote at paragraphs 38 through 41:
The act of cutting a piece of the mother plant off and treating it with a root hormone, as Mr. Machula did here, and placing it in soil which is watered and fertilized and placed under grow lights fits well within the common usage of the words cultivate or propagate. This requires the cutting to be something more than just a piece or a part of the mother plant. It requires evidence of efforts to grow that piece into a mature plant by placing the cutting into soil and providing it with the necessities for growth such as water, nutrient and light.
This definition is appropriate because it avoids mere pieces or parts of the mother plant without anything more falling into the definition of plant but captures pieces being cultivated or propagated into mature marijuana plants whether or not there are roots. It captures the recently started grow operation which still has all the inherent dangers and risks of a grow operation.
I will define a marijuana plant as a substance analysed to be contained in Schedule II which is being cultivated or propagated or harvested.
Pursuant to that definition, the existence of roots is irrelevant and Mr. Machula's own evidence established that over 450 plants were being grown.
[28] In my view, Justice Selkirk’s definition is compelling. He comes to his conclusion after following a very carefully reasoned analysis and he makes a persuasive argument that it is not necessary for a plant to have roots in order for it to be considered a plant for the purposes of the section 7(b) count.
[29] With respect, I prefer the definition adopted by the court in R. v. Machula to the definition which was adopted in R. v. Li. However, for the following reasons I find it is not necessary for me to choose between these contrasting views.
[30] Firstly, I have decided that all of the plants contained in rooms G2, G3 and G4 should be included in the count. These plants number 206. I am not persuaded that I should reduce this number because some of them might not survive to full maturity. The videotaped evidence shown at trial clearly discloses that they were alive on the day of the arrest and this is the date which is relevant to the count.
[31] Secondly, regardless of how one defines a plant, the police discovered what can only be regarded as a reasonably sophisticated commercial grow operation. Mr. Blackwood has been convicted of drug related offences on 2 previous occasions. In the circumstances, a sentence of at least one year is warranted regardless of what definition we apply to a plant.
Principles of Sentencing:
[32] The Criminal Code sets out principles which provide guidance to judges when sentencing offenders.
[33] The objectives of sentencing are set out in Section 718 and include the following:
a) To denounce unlawful conduct; b) To deter the offender and other persons from committing offences; c) To separate offenders from society, where necessary; d) To assist in rehabilitating offenders; e) To provide reparation for harm done to victims or to the community; and; f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[34] Case law reveals that the paramount objectives in drug trafficking cases are general and specific deterrence.
Mitigating and Aggravating Factors:
[35] Section 718.2 of the Criminal Code requires me to take into consideration any relevant aggravating or mitigating circumstances relating to these offences. In this case I find that there a number of aggravating factors which it is incumbent on me to consider. These include the following:
a) The production of this marijuana was intentional and required careful planning and deliberation. b) Mr. Blackwood was engaged in the sale and distribution of a substance which often takes place within a culture of violence. c) Mr. Blackwood has a criminal record which includes the following: December 1, 2001; Production of a scheduled substance, for which Mr. Blackwood received a suspended sentence and probation for a year. September 30, 2008; Production of a scheduled substance for which Mr. Blackwood received a one year conditional sentence and a section 109 firearms prohibition order.
[36] In arriving at a proper and just sentence, I consider the following mitigating factors:
a) Mr. Blackwood was co-operative with the police throughout. b) Mr. Blackwood pleaded guilty to the possession of marijuana charge and to the charge of the production of the marijuana. c) There is no evidence that Mr. Blackwood was directly involved in any violent activity associated with the trafficking of drugs. d) There was no evidence that Mr. Blackwood attempted to by-pass the hydro meter, as is the case in many illegal grow operations. e) The grow operation took place in a rural setting; f) In my view, Mr. Blackwood exhibited genuine remorse about his actions.
Positions of Crown and Defence:
[37] The Crown submits that in the circumstances of this case a just and proper sentence includes a custodial order of 16 to 24 months in relation to the charges of producing marijuana and possessing marijuana for the purpose of trafficking. It submits that a custodial order of 60 days for the offence of Possession of Marijuana is appropriate, an offence to which Mr. Blackwood pleaded guilty. With respect to the offence of Possession of Ammunition, the Crown submits that a custodial sentence of 60 days is also appropriate. All of these sentences can be served concurrently.
[38] Crown counsel reminds the court that one of the purposes of sentencing in cases such as this is to promote respect for the law. He points out that the actions of the accused were intentional and required meticulous planning and deliberation. He argues that Mr. Blackwood’s conduct demonstrates a lack of respect for the law and that the sentence should reflect this fact. Furthermore, the charges constitute very serious offences and this is not the first time Mr. Blackwood has broken the law with respect to the production of marijuana.
[39] Mr. Blackwood submits that a sentence of probation with community service is appropriate. His counsel points out that his client is a “broken man”. Since his arrest his mother, with whom he had a close relationship has passed away. His client has also lost his home, which was repossessed by the mortgagee and the subject of Power of Sale proceedings following his arrest.
Sentence
[40] The actions of Mr. Blackwood were planned and deliberate. The grow op was a reasonably sophisticated commercial operation and by engaging in the activity of growing marijuana Mr. Blackwood demonstrated a willful disregard for the law. In cases involving the trafficking of drugs, the objectives of deterrence and denunciation are generally regarded as paramount. Despite previous convictions for the same offence, Mr. Blackwood has continued to engage in the production of marijuana and I find this to be a particularly significant factor in sentencing him.
[41] I note that Mr. Blackwood’s comments to the police at the time of his arrest reveal that he was well aware of the risks involved with illegal grow operations.
[42] After considering the submissions of counsel and the case law, I have concluded that a 425 day custodial term in relation to the charge of trafficking of marijuana constitutes a fair and just sentence in the circumstances of this case.
[43] Specifically, with respect to the charge of Possession of Marijuana for the purpose of Trafficking I am imposing a sentence of 425 days. I note that Mr. Blackwood served 15 days of pre-trial custody and counsel agree that he is entitled to a credit of 23 days against his 425 day sentence, reducing his overall custodial term to 402 days.
[44] With respect to the charge of Production of Marijuana, I am imposing a sentence of 395 days of custody. I would come to this conclusion even in the absence of any section 7 (2) (b) (iii) considerations. With respect to the Possession of Marijuana charge, I am imposing a sentence of 60 days and with respect to the possession of ammunition charge I am also imposing a custodial sentence of 60 days. All these sentences can be served concurrently to the sentence of Possession of Marijuana for the purpose of Trafficking.
[45] Ancillary orders include a DNA order under s. 487.5 of the Criminal Code and a further lifetime weapons prohibition order under s.109 of the Criminal Code.
Forfeiture Order
[46] The Crown asks for an order of forfeiture of all “offence related property” pursuant to s. 16 (1) (b) of the CDSA. The Crown also asks that “unlawfully possessed property” such as the ammunition, marijuana and the psychedelic compound psilocybin which was seized at Mr. Blackwood’s property be forfeited.
[47] The defence does not object to a forfeiture order with respect to any of the items or chattels which the Crown wishes to forfeit. It does object to the forfeiture of the net proceeds remaining from the sale of the home, after payment of the amount owing to the mortgagee. These proceeds total approximately $24, 000.
Discussion of the Law re Forfeiture of Offence Related Property
[48] Section 16(1) of the CDSA provides that “where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall:
(a) in the case of a substance included in Schedule VI, order that the substance be forfeited to her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and
(b) in the case of any other offence-related property,
(i) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and
(ii) in any other case, order that the property be forfeited to Her Majesty in Right of Canada and disposed of by such member of the Queen’s privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law.”
[49] The wording of Section 16(1) of the CDSA is mandatory in requiring the Court to order forfeiture of property if it is shown “on a balance of probabilities” to be “offence related property” and a “designated substance offence” was “committed in relation to that property”, but this mandatory provision is subject to the provisions of Section 19.1(3) of the CDSA.
[50] Section 19.1(3) of the CDSA provides that the court can exercise its discretion not to order forfeiture of all or some of the property in three circumstances. This section reads:
“Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made under subsection 16(1) ... in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as the case may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made in respect of that property or part”.
Issues which must be decided in relation to Forfeiture of the Net proceeds from the sale of Mr. Blackwood’s house.
[51] There are a number of issues to consider in relation to the request by the Crown for the forfeiture of the net proceeds from the sale of Mr. Blackwood’s house.
[52] The first issue is whether the real property the Crown seeks forfeiture of is “offence-related property” within the meaning of section 2 of the CDSA.
[53] The second issue is whether all or partial forfeiture of the real property would be disproportionate to the “nature and gravity of the offence, the circumstances surrounding commission of the offence and the criminal record” of the Respondent, pursuant to s. 19.1(3).
Issue 1…Is Mr. Blackwood’s home offence related property?
[54] The residence formerly owned and resided in by Mr. Blackwood at 1825 Stisted Road North, McMurrich-Monteith Township, Ontario, was modified and used to illegally grow cannabis marijuana in a relatively sophisticated operation, which apparently had been in place over an extended period of time.
[55] In my view, the residence is properly regarded as offence related property.
[56] The “net proceeds” of sale of the property by the Canadian Imperial Bank of Commerce which held a mortgage on the property “stand in place of the Property for the purposes of the Crown’s forfeiture application”, as ordered by this Honourable Court in its Variation of Restraint and Management Order dated December 14th, 2015.
Issue 2…Should there be a complete or partial forfeiture of the home?
[57] The Crown submits that the facts and circumstances of this case and the jurisprudence applicable to a consideration of its forfeiture applications in this case mandate forfeiture of all Offence Related Property, given Mr. Blackwood’s past record and the fact he has been convicted for a third time of the Unlawful Production of a Controlled Substance.
[58] The Crown called expert evidence that the 673 Grams of Cannabis Marijuana seized in this case had the potential to bring the Respondent between $3,750.00 if sold at the Pound level and $13,460.00 if sold at the Gram level by the Respondent.
[59] The Crown’s expert also testified that the 451 plants discovered at the house had the potential to yield 902 ounces of Cannabis Marijuana Bud which could have brought Mr. Blackwood between $140,750.00 if sold at the Pound level and $505,120.00 if sold at the Gram level by the Respondent.
[60] The Crown submits that the inculpatory utterances made by Mr. Blackwood to the police following his Detention and Arrest indicate the he knew what the entire consequences were likely to be if he were found out and convicted of Unlawful Production of a Controlled Substance for a third time, and yet he was willing to take the risk, i.e. risk incarceration and risk forfeiture of his residential property following conviction. The Crown argues that Mr. Blackwood has nobody to blame but himself for consciously making the decisions he did to risk all by committing the designated substance offences he has been convicted of in this case.
[61] According to the Crown, the evidence at trial showed that Mr. Blackwell had no legitimate means of fully supporting himself in his former residence and paying his “bills”. He was motivated by easy profit and the allure of commercial gain by using his residence to produce marijuana.
[62] I agree that this is not a case where the Court can exercise its discretion not to order the complete forfeiture of the net proceeds from the house in which the marijuana was produced. The impact of the forfeiture of these funds is not disproportionate in light of “the nature and gravity of the offence, the relevant circumstances of the commission of the offence and the criminal record” of Mr. Blackwell.
DECISION…FORFEITURE ORDERS
[63] For the above reasons I am ordering that Mr. Blackwood forfeit to the Crown in Right of Canada the following:
A. Offence Related Property
- All interest in the net proceeds of sale of the real property described as follows: PIN No.: 52168-0488 (LT) Pt. Lt 15 CON 12 McMurrich PT 3 42R9732 Except PT 1 42R11399 McMurrich/Monteith
- Cardboard target;
- Tanta KD-160 digital scale;
- Westinghouse electric grinder
- LG Cell phone Serial #212KPS2932702;
- Eye Hortilux Ultra Ace grow lamps;
- Venture KR85 grow lights
B. Unlawfully Possessed Property
- Cannabis marijuana;
- Psilocybin;
- 17 rounds of .38 cal. bullets;
- 22 Long Rifle and .22 cal. bullets
- 12 gauge shotgun shells;