COURT FILE NO.: CR-14-172-00 DATE: 2016, August 12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Joseph Patrick Boomhower, Beverly A. Boomhower, And Travis Joseph Boomhower

COUNSEL: Joseph Dart, for the CROWN Sean Ellacott, Counsel for the ACCUSED

HEARD: August 11, 2015, April 6, 2016, May 2, 2016

REASONS FOR JUDGMENT

TAUSENDFREUND, J

ACCUSED

[1] The accused stand charged as follows:

Count #1: Joseph Patrick Boomhower and Beverly A. Boomhower unlawfully did produce for the purpose of trafficking, a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: cannabis marijuana, contrary to Section 7(1) of the said Act, thereby committing an indictable offence under Section 7(2)(b) of the said Act.

Count #2: And further, that Joseph Patrick Boomhower and Beverly A. Boomhower unlawfully did for the purpose of trafficking, possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: 3kg or more of cannabis marijuana, contrary to Section 5(2) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act.

Count #3: And further, that Joseph Patrick Boormerhower and Beverly A. Boomhower together did possess a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit more than 30g of cannabis (marijuana) contrary to Section 4(1) of the said Act, thereby committing an indictable offence under Section 4(1) of the said Act.

Count #4 And further, that Joseph Patrick Boomhower, Beverly A. Boomhower and Travis Joseph Boomhower together unlawfully did store firearms in a manner contrary to the regulation, thereby contravening regulation 5(1)(b)(iii) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, contrary to Section 86(2) of the Criminal Code.

Count #5 And further that Travis Joseph Boomhower did being at large on his recognizance entered into before a Justice of the Peace and being bound to comply with a condition of that recognizance directed by the said Justice of the Peace fail without lawful excuse to comply with that condition to wit; Not to possess firearms or weapons, contrary to Section 145(3) of the Criminal Code.

Count #6 And further that Travis Joseph Boomhower did being at large on his recognizance entered into before a Justice of the Peace and being bound to comply with a condition of that recognizance directed by the said Justice of the Peace fail without lawful excuse to comply with that condition to wit; Not to possess ammunition, contrary to Section 145(3) of the Criminal Code.

FACTS

[2] On October 9, 2013 and on the strength of a search warrant, the OPP entered the property currently owned jointly by two of the accused, Joseph Patrick Boomhower and his wife Beverly Boomhower. The other accused, Travis Joseph Boomhower, also known by the last name of Dennis, is their son (“Travis”).

[3] Located in a rural area, fronting on Highway 41 in the municipality of Addington Highlands in the county of Lennox and Addington, the property has a frontage of about 527 feet by a depth of about 834 feet. I calculate that to be about 10 acres in size. The OPP had obtained the search warrant the morning of October 9, 2013. The validity of that search warrant is not in dispute. They arrived at about 11:15 a.m. and entered the residence fronting on Highway 41. It is a large well-maintained bungalow with a finished basement, a two car garage and a utility shed at the rear about 40 to 50 feet from the house. The only person in the house when the officers arrived was the live-in girlfriend of Travis Boomhower. Travis and his girlfriend had been living previously in a home owned jointly by Travis and his mother. That property is also located on Highway 41 about two miles away.

[4] As of October 9, 2013, Travis and his girlfriend had been living in the home of his parents for three weeks leading up to that incident. Some weeks earlier, Travis had been charged with several offences and had been released on a recognizance with his parents as his sureties. One of the terms of that recognizance required that he live with them. For that reason, Travis and his girlfriend were then living at the home of his parents. His bail conditions further included a provision that he obey a curfew of eight o’clock in the evening to six o’clock the following morning and that he not have in his possession a firearm or any other of several named weapons.

[5] The officers proceeded with a search of the property. They started with the house. In a storage room in the basement, they located a Remington semi-automatic shotgun lying in plain view and boxes of ammunition and a number of shotgun shells. It is agreed that this ammunition is not of the size and calibre for use with this gun.

[6] In the basement freezer, the OPP located a plastic bag containing buds and loose leaf clippings. It is agreed that this and other plant material found on the property and represented to be marijuana was in fact analyzed to be marijuana. Det./Const. Snider weighed this particular bag of buds and leaf clippings and found it to weight 300 grams.

[7] In the upstairs kitchen freezer, the OPP located a Ziploc bag with marijuana, buds and weeds. It was weighed at 10 grams. Later that morning, the accused Beverley Boomhower arrived. Referring to the marijuana found in the upstairs kitchen freezer, she said to Const. Quinn, “That’s only a small amount and I use it for baking”.

[8] The police then proceeded to the shed located some 40 to 50 feet from the rear of the house. Based on the photographs taken by the police and the evidence of Travis, I find that the shed was used by the two elder Boomhowers as a storage shed for hunting and other sporting gear. In that shed the OPP located the following:

a) A Browning 10-gauge pump action shot gun in an unlocked open case lying on the floor. There was no locking device for this gun. It appeared to the officer to be functional. However, the barrel had been disconnected from the firearm. According to the officer, that is not a difficult thing to do with a pump action shot gun, as these guns are typically designed for the barrel to be easily removed for transportation or cleaning purposes. 10-gauge ammunition for use in that gun was found on a shelf in this utility shed. b) Two 12-gauge pump action shot guns, camouflage in colour. One was a Browning BPS and the other a Browning Maxus semi-automatic. Neither gun was secured. They were lying in open plastic cases.

[9] Once Beverly Boomhower was told about the guns the police had located, she referred to a Remington semi-automatic shot gun found by the police in the basement storage room of the house and said that this was her gun and that she had just not gotten around to putting it away yet. She further stated that this gun does not belong to her son Travis and that he probably did not even know that the gun was there.

[10] Travis testified. He stated that he and his girlfriend had moved into his parents’ house about three weeks earlier, as this was a term of his bail condition upon which he had been released. He and his girlfriend used the bedroom in his parents’ basement, down the hall from where the Remington semi-automatic shot-gun had been located by the police. He stated that he did not use that utility room and had never seen that gun, which in any event was not his. Both his parents were hunters and owned guns. These guns were generally kept in locked gun cases by his parents in their home. As one of his bail conditions required that he not have in his possession a firearm, he believed and had expected that his parents had removed all of the guns and ammunition from the house. When shown photographs of the guns the police had located, he agreed that these were all firearms. He also confirmed that his parents used the storage shed at the back of the house to store hunting and trapping equipment.

[11] After the search of the house and the storage shed, the police proceeded down a path at the rear of a house leading to the site of a “lean-to shed” and a trailer located some 100 metres from the house, but not visible from there. Along the way, the officers saw about five or six marijuana plants, each in a black pot, located just off the road. They also located five or six additional marijuana plants in plastic pots and/or grain bags located about 20 metres into the woods and away from the road.

[12] Inside the trailer and the shack next to it, the officers located 94 marijuana plants, some laid out and others were hung to dry. These plants were each about three feet high. They also located buds and clipped marijuana on three drying racks, in addition to a propane tank and heating element.

[13] The plants next to the road and others further removed in the woods were all live marijuana plants. The 94 marijuana plants hung to dry, including the buds and clipped marijuana had a combined weight of about 22 lbs, as identified by the OPP. Const. Quinn used the bathroom scale in the house. He first confirmed its accuracy by weighing himself at 180 lbs, which was his regular weight. He then stepped on the scales again holding a large plastic bag which now contained all of the marijuana the OPP had taken from the shack, the trailer, plus the 12 plants they found growing near the road and in the woods, all within 100 metres of the trailer. Some of these plants had chicken wire placed around them. They also located 10-12 bags of soil which Det./Const. Snider described as potting soil. He found other marijuana plants, some growing in pots and others about three feet high growing within rocks near the trailer area.

[14] The photographs taken by the OPP of the marijuana in the trailer and shack, the immediate surrounding area and the marijuana plants along the side of the road and in the woods would indicate the following:

a) Marijuana was placed on three drying racks and on the floor beneath those racks with marijuana plants hanging in the trailer from bailer twine. b) The drying racks were crudely constructed with wire mesh attached to wooden frames. c) Discarded rolls of wire mesh appear outside nearby. Behind one such roll is a large marijuana plant growing either out of the ground or in a pot. Surrounding it is not only a large roll of wire mesh, but also discarded debris. d) On a large rock is a tire filled with soil into which had been placed some wire meshing. More discarded rolls of wire mesh lay randomly nearby. In the middle of this tire grew a healthy, large marijuana plant. e) At least 13 plastic bags with Co-Op Feed stamped on the outside were found in a cluster of some disarray. Some of these bags were partially ripped, others completely and some not at all. Some appeared to have plants growing through the ripped plastic. These bags give the appearance that they had been in that state for more than just a few days. f) Both dark and light beige plastic potting soil containers are visible. g) Three or four healthy marijuana plants, one of which was between three to five feet tall appeared to be growing, some on top of and others next to a large rock formation. Light plastic bags similar to the Co-Op Feed bags and partially filled with soil were located underneath and beside at least two of these plants. I cannot say for certain if these marijuana plants were potted, but there was no indication that they were. h) Two other tall healthy marijuana plants grew next to a rock formation with a Co-Op Feed bag partially filled with soil positioned between these two plants. There was no sign that either of these two plants was potted. i) Six apparently healthy marijuana plants all about three feet high and each in large, dark, rounded pots grew along the side of the road.

EVIDENCE GIVEN BY TRAVIS

[15] He was the only one of the three accused to testify. The following is a summary of his evidence:

• When shown photographs taken by the OPP of the marijuana, the “lean to shed”, the trailer and the surrounding area, he stated that he and another person had placed the marijuana there.
• On Monday, October 7, 2013, two days prior to the police search of his parents’ property, his cousin called him in the afternoon to say he needed a place for some marijuana plants to dry. Travis told his cousin that he only had a few days available for that purpose, as his father was expected back for the weekend. If his cousin could get the marijuana there by Monday night, they would have until Friday of that week before Mr. Boomhower Sr. was expected to return from work.
• Travis’ father is long distance truck driver. He was generally gone the entire week and was usually expected home by late Friday. He would then leave again Sunday afternoon. Travis agreed to assist his cousin in this endeavour in return for $2,000. He did not tell his parents about the plan.
• His cousin arrived with the marijuana Monday night about two hours after dark.
• Travis was very familiar with marijuana and had overseen its drying process before. He built the drying racks on the afternoon before his cousin arrived. He used material he found onsite.
• He and his cousin hung the plants to dry. Other plants they left in pots to mature. The idea was to let these potted plants fill out before they were to be cut down for drying purposes.
• Travis’ mother had been involved in a car accident in or about 2011 and has had resulting back pain ever since. She uses and relies on marijuana to lesson that pain.

Cross Examination

• Both of his parents are hunters. The guns the police located belong to his parents.
• Based on his bail conditions, he understood and expected that these guns were to have been been moved to his grandparent’s home. It was a condition of his bail that he could not reside at his parents’ home unless these guns had been removed. He thought that this had happened before his move into his parents’ home three weeks earlier.
• He agreed that he had experience with marijuana. As late as 2011, he had in his home marijuana, screens and other drying apparatus for marijuana. He had ceased with that operation in his own home after 2011, based on the urging of his girlfriend who apparently hated his involvement in it. He stated that marijuana plants are best harvested when they are between three to seven feet in height. A fan and dehumidifier would assist in the drying process, if one were to do it in a house. Given sufficient time, drying marijuana plants on screens is optimal. That allows one to harvest the buds and then hang the plants to dry further. Provided one has fans and dehumidifiers to assist, it takes about two days to dry a plant to the point where it is ready for use or sale.
• The person who called him that Monday to ask for assistance in drying marijuana was his cousin. Travis was not prepared to disclose his name, as this might compromise his own safety.
• His cousin had called him to say he had located some “dope plants” he planned to steal that evening. However, he needed a place to dry them, as his wife would “freak out” if he were to do this at his home. As Travis did not know what, if anything, his cousin would be bringing for drying purposes, he got busy that afternoon to assemble drying screens. He built the racks and frames from material he found in the area of the trailer and shack. The screens came from a spare leftover roll that he had located in his parents’ basement.
• The Airstream trailer had been in that location since his parents had moved to this property about two years earlier.
• His cousin arrived with the marijuana plants in the back of his truck. This included: a) “A bunch of grain bags filled with dope”. By this he meant loose marijuana. His cousin also bought 10 to 12 plastic pots, green or black in colour. Five or six of these contained larger plants, each about five feet tall. Some additional plants came in grain sacks filled with dirt. One such plant was in a wire mesh roll. He and his cousin initially carried five of the bigger potted plants into the woods and next to and on top of the rock formation behind the shack. Their initial plan was to keep them out of sight. They then got “lazy”. So they placed the remaining potted plants along the path. They were meant to be there only a few days. For that reason he had seen no need to be more secretive.
• What they removed from the truck were plants in buckets, sacks, and one plant in a wire mesh basket. When he was referred to photo 75 showing a tire filled with soil with a large marijuana plant growing inside and surrounded by wire mesh, he agreed that this tire must have been on the truck. He had forgotten to mention it. He had imagined it as a pot and stated that had he mixed up a tire with a black pot. When asked if there were also white pots, he stated that his cousin had not brought any white pots. When referred to photo 77 showing two white pots, he agreed that these must have arrived on his cousin’s truck.

ANALYSIS

Firearms – Counts #4, 5, 6

[16] The officers located a Remington Semi-automatic shotgun next to an empty gun case, both lying in plain view on boxes in a storage room in the basement of the main house.

[17] Travis had been living there for three weeks. He knew that his bail conditions, which allowed him to live with his parents, required them to remove all firearms from the home. He testified that his parents had two gun cabinets in the house where they normally had kept their guns in a locked condition. He had believed and expected that all guns had been removed from the house by his parents and that they would have delivered those guns to the residence of his grandparents. In any event, he had not been inside that storage room, had not seen that gun, nor did he know it was still in his parents’ home. That evidence is un-contradicted and I accept it.

[18] There is agreement that the shells that were also located by the OPP in the storage room were not of the size and type for use in that gun. No other ammunition was found in the storage room.

[19] Beverley Boomhower had arrived at her home during the course of the search when she made an utterance in relation to that gun. She said that it was hers and that she had not yet put it away. She specifically stated that it did not belong to her son, Travis. Again, this statement is not contradicted and I accept it.

[20] Section 5(1) of the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations provides:

5(1) An individual may store a non-restricted firearm only if a) it is unloaded; b) it is (i) rendered inoperable by a secure locking device, (ii) rendered inoperable by the removable of the bolt or bolt-carrier, or (iii) stored in a container, receptacle, or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and c) it is not readily accessible to ammunition unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into.

[21] I accept and adopt this interpretation of s. 5 of the above Regulations, as stated by Pringle, J. in R v. Bidawi 2015 ONCJ 634 at para. 51:

a) “…The plain reading of Regulation 5 is that the firearm must be a) unloaded; b) securely locked or rendered inoperable; c) not readily accessible to ammunition unless the ammunition is stored in a securely locked container.”

In other words, meeting the requirements of a) and b) alone is not sufficient, as all three parts of s. 5 must co-exist: see R. v. L.B.R. 2011 BCSC 1152 at para. 209.

[22] It is agreed that the ammunition found near this gun is not of the type and size for use by this gun. No other ammunition was found in the storage room. As such, there was no contravention of s. 5 of these Regulations with respect to this firearm.

[23] The police searched and found three further guns in the utility shed located behind the house and about 50 metres away. They located a 10-gauge pump action shot gun lying in an open case on the floor without a locking device. It appeared to be functional, but the barrel was disconnected from the firearm. Det./Const. Snider testified that this type of gun is designed for the barrel to be easily removed for transport or cleaning purposes and that this is not a difficult procedure. 10-gauge ammunition for that gun was located on a shelf in the shed.

[24] The police located two other shot guns in that shed. One was a Browning 12-gauge pump action and the other a Browning Maxus 12-gauge semi-automatic. Neither gun was locked. They were located in plastic cases. There was no evidence of ammunition located in that shed suitable for use in either of the two 12-gauge shot guns. Accordingly, I make the same finding with respect to these two 12-gauge shot guns as I did with respect to the gun located in the basement storage room of the main house. Absent evidence of suitable ammunition located nearby, there is no contravention of s. 5 of the Regulations of the Storage, Display, Transportation and Handling of Firearms by Individuals, as it relates to these two guns.

[25] Travis testified that in his view these guns located by the police both in the main house and in the shed were all firearms. He further stated that the shed was used by his parents to store hunting and trapping equipment. The Officer who located the guns in the shed stated that they appeared to be functional. The photos taken by the police and marked as an exhibit are replete with indicia of hunting related material. Based on all of that evidence, I am satisfied that these guns are firearms within the definition of the Criminal Code.

[26] It is agreed that Travis was committed for trial only with respect to the gun located in the storage room in the basement of the main house. Based on my finding that the Crown has failed to make its case with respect to that gun, Travis Joseph Boomhower will be found not guilty on Count #4. As counts #5 and #6 allege possession by Travis of a firearm and ammunition as detailed in Count #4, he will also be found not guilty on these two counts, namely counts #5 and #6. His parents Joseph Patrick Boomhower and Beverly A. Boomhower will also be found not guilty with respect to this firearm located by the police in the storage room in the basement of the main house. In like manner, these two will also be found not guilty for the same reasons already noted with respect to the two 12-gauge shotguns located in the shed. That leaves the matter of the 10-gauge pump action shotgun located in the shed, with respect to which there was ammunition on a shelf in that shed. Joseph Patrick Boomhower and Beverly A. Boomhower will be found guilty on count #4 with respect to this 10-gauge pump action shotgun.

Marijuana – Counts #1, #2, and #3

[27] I will first turn to the evidence of Travis and the marijuana found hanging to dry in the trailer and lean-to shed and the 12 plants, some placed in pots along the road and other plants some distance away from the trailer in the area of a rock formation.

[28] It is the evidence of Travis that his unnamed and unidentified cousin had called him on Monday afternoon October 7, 2013, two days before the OPP had arrived to carry out their search of the Boomhower property. As I already detailed, Travis stated that this was to be a quick money making proposition for him. The marijuana arrived that Monday night two hours after dark and was to be removed from his parents’ property about four days later by Friday evening of that week, as his father was normally expected then to return from his work as a long distance trucker. If I accept the evidence of Travis regarding the arrangement with his cousin, I would likely find that his parents had no knowledge of and were not involved in this four day arrangement to which Travis had agreed with some apparent reluctance. As Travis related it, he agreed to it at the urging of his cousin, whom he either did not wish to disappoint or of whom he was afraid. Additionally, it was to generate a quick return of about $2,000 for Travis. His father was away as a long distance trucker. He would have no knowledge of that arrangement. Travis also stated that his mother knew nothing about it, as she would not venture to the back of the house, except to feed the dogs.

[29] I now remind myself of the principles of R. v. W.D., [1991] 1 S.C.R. 742, a 1991 decision of the Supreme Court of Canada. These principles are in play where credibility is at issue. As Cory, J., speaking for the majority of the Supreme Court, pointed out in W.D., that in a case where credibility is important the rule of reasonable doubt applies to that issue. I must instruct myself that “I need not firmly believe or disbelieve any witness or set of witnesses, but that I must acquit, if after considering the evidence tendered on behalf of the accused and considering the evidence as a whole, I am left with a reasonable doubt as to the guilt of the accused.”

[30] Essentially Travis testified for his parents, neither of whom gave evidence. To render a verdict, it is not proper for me to decide if I believe either the evidence of the defence or the Crown’s evidence. This is not an either/or proposition, as Cory, J. held in W.D.. I will be guided by the frequently quoted W.D. principles which I find apply to the facts before me. Amended to provide for these facts, I instruct myself on the question of credibility as follows:

First, if I believe the evidence of Travis, I must acquit his parents on counts 1 and 2. Second, if I do not believe his evidence, but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of Travis, I must ask myself, on the basis of the evidence which I do accept, whether I am convinced beyond a reasonable doubt by that evidence of the guilt of Travis’ parents.

[31] I also remind myself that the verdict must not be based on a choice between the evidence of Travis and the evidence of the Crown: See R. v. Vuradin, 2013 SCC 40, a 2013 decision of the SCC.

[32] When assessing the evidence of Travis, I take note of the following:

a) It is entirely uncorroborated. That includes the reason Travis gave for not disclosing the name and address of his cousin based on the represented danger that Travis might face as a result. I add that corroboration is not required, but may assist in assessing his evidence. b) Travis stated that he built the drying racks on that Monday afternoon once he had confirmed with his cousin that he would accede to the request to accept the marijuana plants, for drying purposes only, on his parents’ property. The photos of the drying racks I find to be neutral. Based on my review of the photos, these racks could have been assembled that Monday afternoon, two days before the search, or they could have been there for several weeks or months. c) Travis stated that he obtained the screens from a spare roll he found in his parents’ basement. Photo 74 shows at least three further rolls and/or parts of screening, which surrounded one or more of the marijuana plants. Photo 75 shows a further one or two rolls of such screening, all located in the vicinity of the trailer. They appear to have been there for some time. This screening was readily accessible, lying in a haphazard fashion and mere steps from the trailer and the shed. Travis did not touch upon why he would not have made use of that screening to construct the drying racks, rather than having gone to the basement of his parents’ house where he purportedly found a roll of screening. d) According to Travis, his cousin arrived about two hours after dark. They unloaded marijuana in pots and grain bags filled with marijuana. Photo 76 shows by my count 18 such bags all labeled Co-Op Feed. Travis stated that such bags are readily available at little cost. What is of note to me is that only two such bags are empty. The remaining bags are apparently filled with soil and green plant material growing out of rips in the bags. That would be more consistent with those bags having been in that location for some weeks or months rather than two days. Further, if the bags, once removed from the trucks were emptied of the marijuana they held, there is no sign of such empty bags except the two shown among the group of bags in photo 76. e) Photos 79, 80, and 81 are said to be of marijuana plants growing on top of and next to a rock formation. Next to each of these plants is a white bag full of soil. There is no indication that any of these plants in these photos were potted. Photos 80 and 81 show the bags clearly. The white bag in each case has been placed next to the plant. In other photos it is not clear whether the bag was placed next to the plant or whether the plant is actually growing out of soil inside the bag. Photo 81 in particular shows the middle of the three plants apparently growing on top of the rock. There is no sign of a pot or of a bag out of which this plant might be growing. Travis had stated that some of the plants they removed appeared premature. They had buds on them that did not amount to anything. According to Travis, it was his idea to let these plants fill out a little more before cutting them down. What he did not say is when that was to occur. Was it to be within the four days? If so, they would still then need to be hung for drying purposes. If not within the four days, then his cousin would have to remove them before Friday night. His cousin, however, imposed the entire plan on Travis as his cousin’s wife was said to likely “freak out” if he were to arrive home with marijuana to dry. What then, was the plan for those premature marijuana plants in pots? And what of those plants next to and on the rock formation? Even to a casual observer, these plants appear to look healthy and of substance. Why were they not hung to dry and what was the purpose of placing bags full of soil next to them? If they were not growing out of pots nor out of bags full of soil, were they growing directly out of the ground as the photos tend to show? f) Photo 75 shows a tire placed on a rock. The tire is filled with soil. Growing from that soil is a marijuana plant surrounded by wire mesh imbedded in the soil. Travis had stated that he and his cousin had removed marijuana plants in buckets and sacks and one plant in a wire mesh basket. When asked about the tire, Travis stated that he did not recall the tire and that he must have imagined it as a pot. He then said in cross-examination at page 69:

Q: You said there was no bottom on that tire, and then you said there’s no way you brought that in the truck. A: I said yes there is. I brought that in the truck. Q: Is there a bottom on it? A: Not that I recall. Q: So you forgot to tell us about that a few minutes ago. Now you remember that you did bring this tire in the truck. A: Well, it’s there. I must have imagined it as a pot or something.

Perhaps Travis had misspoken when he said that it was he who brought that tire in the truck. Perhaps by “I” he meant his cousin, or not. What is unclear is how the tire got there on top of the rock full of soil with imbedded wire meshing and the marijuana plant growing inside. Travis did not address it. Det/Const. Snider described the plant he found growing in the tire to be a healthy plant. He also stated that he found a number of marijuana plants growing within the rocks near the trailer area. Const. Croghan described the plants growing in the pots placed along the road to be about four feet tall. I again ask myself why the plants in the pots along the road described to be three and four feet in height and thriving, and particularly the plant growing in the tire were not added to those plants Travis and his cousin are said to have hung that Monday night?

[33] Travis was asked why he placed the larger marijuana plants on the rock formation in the woods. He stated that he placed them there so that these plants were not “right blatant in the wide open”. He was then asked why, and he answered, “I never really had a reason. I just – kind of when you’re doing stuff like that it’s just kinda nice to keep in your mind that it is illegal and keep it out of sight a little bit.”

[34] He was asked if he and his cousin unloaded any white pots. Travis answered, “No, not to my recollection.” When told by the Crown Attorney that he had pictures of some white pots, Travis answered, “Well then, there was white pots.”

[35] There are simply too many inconsistencies for me to accept the uncorroborated evidence of Travis. I do not accept it, nor does it raise with me a reasonable doubt.

[36] As Travis is not charged with the marijuana found in and around the trailer and the shack, I now address the question of whether his parents, Joseph Patrick Boomhower and Beverly Boomhower were in possession of that marijuana within the meaning of section s. 4(3)(b) of the Criminal Code of Canada, which provides:

For the purposes of this Act, (b) Where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[37] The Supreme Court of Canada in R. v. Terrence, [1983] 1 SCR 357 held that a measure of control on the part of the person deemed to be in possession is a constituent and essential element of possession. Justice Code in R. v. Thompson, 2010 ONSC 2997 held at paras. 9 and 10 that, “the law of possession requires proof of knowledge of the substance in question, as the mens rea of the offence, and control of the substance in question as the actus reus.”, and that, “…possession requires proof of both knowledge and control.” In summary, what the crown must show in relation to Joseph Patrick Boomhower and Beverly Boomhower on counts #1 and #2 is that the marijuana was in the possession of Travis with the knowledge and consent of his parents, within the meaning of s. 4(3)(b) of the Criminal Code. The crown must show that they knew about the marijuana in the back of their property which they jointly owned and that they exercised control over it: see R v. Turner, 2012 ONCA 570 at para. 9. If Travis’ parents condoned the presence of the marijuana operation, that is sufficient to exercise control of it. By condoning it, the operation essentially proceeded with their leave.

[38] Travis had lived with his parents for only three weeks prior to the arrival of the OPP on October 9, 2013. Before that, he had lived in a house for five or six years about two miles from his parents’ residence. At the time the police arrived with their search warrant, the two Boomhower parents had been living in their jointly owned property for about two years. There is some indication in the evidence that Beverley Boomhower may have been aware of it, as she made an utterance to the police when she arrived about mid-day on October 9, 2013 with the police already there. The topic of the shed came up and Beverly Boomhower said, “You can see that there is no hydro there”. As the shed closest to the home and used as storage of hunting equipment had hydro, I find that Beverly Boomhower must have referred to the lean-to next to the trailer.

[39] Travis stated that his mother was a marijuana user for at least medical purposes, as it helped her with her pain. She and her husband, Joseph Patrick Boomhower resided in a matrimonial relationship. He appears to have been the main income earner in the family. Based on their matrimonial ties and the fact that they are the joint owners of the property, I find that Joseph Patrick Boomhower had least constructive possession of the 300 grams of marijuana in the basement freezer and the 10 grams of marijuana in the kitchen located in the freezer part of the kitchen fridge, and that Beverly Boomhower had actual possession of that marijuana found in the main house.

[40] That takes me to the marijuana in and around the trailer. Joseph Patrick Boomhower was away as a truck driver during the week and at home for about a day and a half on weekends. Beverly Boomhower is unlikely to have participated in a meaningful way with the marijuana operation around the trailer. It was their son, Travis, who had the knowledge and experience in marijuana grow operations. By his own admission he had been involved in it for at least three to four years prior to October 2013. As Travis stated in his evidence, marijuana is planted in the spring and harvested in the late summer or early fall. It was close to harvest time when the police arrived. I find that it was Travis who arranged for this marijuana grow-op enterprise, which was expected to generate an income ranging from $950 per pound to $2,600 per pound, based on the evidence Travis gave. I find that the accused Joseph Patrick Boomhower and Beverly Boomhower knew about the operation and condoned it. However, there is no evidence before me that they, or either of them, actively participated in the production operation, which I find was the product entirely of their son Travis. Accordingly, I find them not guilty on Count #1.

[41] On Count #2, I find that Travis with the knowledge and consent of his parents had possession of the marijuana: see R. v. Thompson ibid at para. 9. As such, Joseph Patrick Boomhower, Beverly Boomhower and Travis were in joint possession of the approximate 22lbs of marijuana seized by the OPP from the trailer and the adjoining lean-to as well as the plants they located along the road and in the nearby woods. Having made the finding of guilt that their joint possession of the approximate 22lbs of cannabis marijuana was for the purpose of trafficking, I am satisfied that this amount was not for personal use. The amount of marijuana approached the size of a commercial operation motivated entirely by the expectation of a monetary gain. I find them both guilty on count #2.

[42] With respect to the marijuana located in the house, which was approximately 10 grams in the kitchen freezer part of the fridge and 330 grams in the basement freezer, I find both Joseph Patrick Boomhower and Beverly Boomhower guilty of Count #3.

Tausendfreund, J

Released: August 12, 2016

COURT FILE NO.: CR-14-172-00 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JOSEPH PATRICK BOOMHOWER, BEVERLY A. BOOMHOWER, AND TRAVIS JOSEPH BOOMHOWER REASONS FOR JUDGMENT TAUSENDFREUND, J Released: August 12, 2016