Her Majesty the Queen v Dirckx, 2017 ONSC 3218
COURT FILE NO.: CR16-007-0000 DATE: 20170525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Ms. Elizabeth Barefoot, for the Federal Crown
- and -
Leroy David Dirckx Mr. Brian Barrie, for the Accused Accused
HEARD: May 23 and 24, 2017
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Charge
[1] Leroy Dirckx and another fellow are charged with producing cannabis marihuana. The formal charge, as amended, reads:
Leroy David Dirckx and Cody W.G. Hogan stand charged that between the 23rd day of August, 2014 and the 18th day of October, 2014 at the Municipality of Northern Bruce Peninsula, in the County of Bruce, in the Judicial Region of Central West, unlawfully did produce a substance included in Schedule II to wit: cannabis marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act.
The Trial
[2] Mr. Hogan (“Hogan”) resolved his matters. Mr. Dirckx proceeded to trial, without a jury, in Owen Sound in May 2017. It was a very brief trial – 1.5 days including closing submissions by counsel.
[3] The prosecution called no viva voce evidence. Rather, its entire case went in by way of two Exhibits – an Agreed Statement of Fact (Exhibit 1) and a book of photographs (Exhibit 2).
[4] For the Defence, Mr. Dirckx testified.
What the Crown Must Prove
[5] For this Court to find Mr. Dirckx guilty of producing cannabis marihuana, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Dirckx produced a substance; ii. that the substance was cannabis marihuana; iii. that Mr. Dirckx knew that the substance was cannabis marihuana; and iv. that Mr. Dirckx intended to produce cannabis marihuana.
[6] If Crown counsel has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find Mr. Dirckx not guilty.
The Issue is Whether the Crown has Proven Production
[7] The only issue to decide is whether Mr. Dirckx produced cannabis marihuana.
[8] “Produce” is defined in subsection 2(1) of the Controlled Drugs and Substances Act:
produce means, in respect of a substance included in any of Schedules I to IV, to obtain the substance by any method or process including
(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or (b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained,
and includes offer to produce.
[9] Here, the words “cultivating” and “harvesting” are important.
[10] “Substance” has its ordinary meaning. It includes marihuana plants.
The Agreed Facts
[11] In June 2014, the Executive Director of the North American Native Plant Society (“Plant Society”) contacted the police. It was reported that an outdoor marihuana grow operation was discovered on Plant Society property, on the Bruce Peninsula.
[12] The police confirmed that a man named Norman Sones (“Sones”) owned a nearby property.
[13] Sones was also a joint owner of a property at 1142 Dyer’s Bay Road, Northern Bruce Peninsula (“1142”). The other owner was Mr. Dirckx.
[14] There was an approved marihuana grow site located at 1142.
[15] Mr. Dirckx was permitted to legally produce marihuana indoors at 1142.
[16] Police attended the Plant Society property and found two outdoor marihuana grow sites.
[17] The police installed cameras. The cameras captured Mr. Dirckx and Hogan at both grow locations on the Plant Society property on August 23, 2014, and one of the cameras captured both men at the smaller of the two grow locations on October 18, 2014.
[18] The images from the cameras are included in the agreed facts (Exhibit 1, tab 1A) and are also contained in Exhibit 2, the book of photographs.
[19] I pause here to note that Exhibit 2 also contains photographs of 1142 when it was searched by the police under warrant, and photographs of marihuana licences, and photographs of unknown persons (not Mr. Dirckx or Hogan) at a grow location on the Plant Society property (see the two top images on page 1 of tab D, dated October 11, 2014).
[20] Later in the day on October 18th, the police discovered that all of the marihuana plants had been removed from both grow locations on the Plant Society property. Back in early September, the police had counted 27 marihuana plants at the smaller grow site and 50 marihuana plants at the larger site, along with cultivation paraphernalia.
[21] On October 20th, the police executed a search warrant at 1142. Marihuana plants and other items associated with an indoor grow operation were seized.
[22] Mr. Dirckx told the police in a formal recorded statement that he shut down his indoor grow operation at 1142, or at least began that process, in June 2014 because of high hydro costs.
[23] There is nothing conclusively linking the marihuana plant material at the Plant Society property with that found at 1142.
[24] There is no dispute about the police exhibits seized during the course of the investigation, the Health Canada Certificates of Analyst, and the voluntariness and content of Mr. Dirckx’s statement to the police on October 21, 2014. All of those items are included in the agreed facts (Exhibit 1, tabs 1B through 1G).
The Evidence of Mr. Dirckx
[25] The accused, 44 years old, testified and denied any involvement with any of the outdoor marihuana grow sites that he located in the area of the Plant Society property.
[26] If I believe that evidence, Mr. Dirckx must be acquitted. If I do not necessarily accept that evidence but find that it leaves me with a reasonable doubt, the accused must be found not guilty. Even if I completely reject that evidence of Mr. Dirckx, he still must be acquitted unless the rest of the evidence that I do accept persuades me of his guilt beyond a reasonable doubt.
[27] The Crown argues that the W.(D.) analysis does not really fit these facts because Mr. Dirckx could be found guilty of the offence based on his own evidence. I disagree. I deal with that further below.
[28] In a nutshell, Mr. Dirckx testified that, in 2014, he was showing to his friend Hogan a property that Mr. Dirckx had an ownership interest in (the “Sones property”) and which is very close to the Plant Society property.
[29] Mr. Dirckx is, and was then, a real estate broker. Hogan was interested in buying the Sones property.
[30] During the course of showing Hogan the Sones property, Mr. Dirckx and Hogan crossed the boundary into the Plant Society property, where they stumbled upon the two outdoor marihuana grow sites. They also discovered a third grow site which was located either on the Sones property or on the property to the east of the Sones property.
[31] Mr. Dirckx adamantly denied that he had anything to do with the establishment or the running of any of the three outdoor marihuana grow sites.
II. Analysis
The Crown’s “Harvesting” Argument
[32] The prosecution argues that Mr. Dirckx ought to be found guilty on two bases – for cultivating the outdoor marihuana plants, and for harvesting them.
[33] On the latter argument, the Crown urges this Court to use Mr. Dirckx’s own evidence against him.
[34] Mr. Dirckx testified that, while visiting the Plant Society property on October 18, 2014, he cut down ten to twelve marihuana plants, placed them in a garbage bag, removed the bag some distance from the grow site and then eventually discarded the bag in the woods because the plants were likely not useable.
[35] On that evidence, I would not find Mr. Dirckx guilty of production of cannabis marihuana.
[36] The Crown relies principally on some excerpts from a textbook and the decision of the Quebec Court of Appeal in R. v. Couture, 1994 CarswellQue 2481.
[37] That Court decision was decided under different legislation, the Narcotic Control Act, R.S.C. 1970, c. N-1, which legislation included a completely different offence than the current one of production of a controlled substance.
[38] I agree with Ms. Barefoot that the said Court decision contains remarks, for example at paragraph 70, which support the submission that the simple act of cutting down a plant constitutes the act of harvesting.
[39] Of course, the facts are important.
[40] In Couture, supra, the accused was observed by the police near warehouses that contained 7,000 marihuana plants. There was also, very close to where the accused was standing, a marihuana plantation that contained 335 freshly cut and healthy marihuana plants. A hunting knife found on the accused’s person had obviously been used to cut down the plants. He also had leafy material in his pockets.
[41] The trial judge instructed the jury that the offence of cultivation excluded the harvest of the plants, that is, cutting them down.
[42] The jury acquitted the accused of the charge of cultivating marihuana under subsection 6(2) of the old legislation. He was found guilty of a second charge of possession of marihuana for the purpose of trafficking.
[43] Mr. Couture appealed. Several grounds of appeal were advanced. None of them related to the meaning of “cultivation” or “harvesting” (paragraph 15).
[44] The Crown also appealed. Again, several grounds of appeal were advanced. Some of them related to the meaning of “cultivation” and “harvesting” (paragraph 34).
[45] In dealing with the Crown’s arguments about “cultivation” and “harvesting”, the Quebec Court of Appeal called the discussion as being one “of more academic than practical interest” (paragraph 71).
[46] Notwithstanding that caveat which is cause for the exercise of some caution in placing much reliance on what precedes paragraph 71, Ms. Barefoot is correct that, at paragraph 70, the Quebec Court of Appeal concludes that the trial judge was correct to instruct the jury that cultivation excluded harvesting, and Ms. Barefoot is also correct that the Court of Appeal, at paragraph 70, equates “harvesting” with the cutting down of the plants.
[47] To “harvest” means the act or process of gathering in a crop.
[48] It is no surprise that what Mr. Couture did was found to constitute “harvesting”. Besides the very different facts highlighted above, it is crucial to note that the purpose for which Mr. Couture cut down the plants was to dry them as part of the overall operation (paragraph 40).
[49] Mr. Couture was truly cutting down the plants as an act of gathering in the crop of marihuana that had been planted in this large-scale operation.
[50] That bears no similarity to what Mr. Dirckx admitted to in our case. He cut down ten to twelve rather unhealthy marihuana plants, which he had nothing to do with in the first place, with a view to seeing if they could be salvaged for medicinal purposes, and then ultimately left the plants inside a garbage bag in the bush.
[51] In my opinion, that is not production within the meaning of “produce” in section 2 of the current legislation, whether “harvesting” or otherwise.
[52] I agree with the Crown, as evidenced by the textbook references read aloud during closing submissions, that the simple act of cutting down marihuana plants may constitute “harvesting”, and thus production, in some circumstances. But clearly not on our facts.
[53] Thus, it is unnecessary to address the Defence argument about de minimis and the harm principle.
[54] This case turns on whether Mr. Dirckx produced the outdoor marihuana, or helped produce it, through “cultivating” it.
[55] To “cultivate” means to do something to aid in the growth of the marihuana, including but not limited to fertilizing the plants, watering them, giving them soil, giving them artificial light, cleaning them of parasites, spraying them with nutrients, and so on.
A Brief Commentary on Lawyering and Advocacy
[56] Although not strictly necessary in order to decide this case, I would be remiss if I did not take this opportunity to comment on the job done here by counsel for Mr. Dirckx.
[57] It is no wonder that Mr. Barrie is likely the most sought-after lawyer in this area.
[58] The decision to allow the Crown’s case to go in without viva voce evidence was a smart one. It tends to blunt the effect of the prosecution’s evidence and places the emphasis squarely on the case for the Defence. It streamlines the process, something always appreciated by the judiciary.
[59] Although there was certainly a triable issue in this case in terms of whether the accused produced the marihuana found in the outdoor grow sites, I suspect that a part of the strategy by the Defence was to elicit information that may be helpful on sentence, in terms of lessening the moral blameworthiness of Mr. Dirckx, in the event that the verdict went against the accused.
[60] It remains to be seen, however, if that was a part of the Defence strategy, it was at least employed in an effective manner.
Findings
[61] Not even Mr. Barrie, however, can combat the overwhelming evidence in this case.
[62] What do we have? Let us examine the totality of the circumstances.
[63] Mr. Dirckx was, at the time, a marihuana user for medicinal purposes and a grower of marihuana. The charge, of course, is production of marihuana.
[64] Mr. Dirckx was, at the time, an owner of a piece of property located very close to, in fact a short walking distance from, the outdoor marihuana grow sites located on the Plant Society property.
[65] Mr. Dirckx was, at the time, very familiar with the area in the vicinity of the boundary between the Sones property and the Plant Society property.
[66] This is a relatively isolated area. In fact, on Mr. Dirckx’s own evidence, he has never seen anyone around who appeared to be with the Plant Society.
[67] As per paragraph 29 of Exhibit 1, the police noted distinct pathways or trails between the private Sones property and the outdoor marihuana grow sites located on the Plant Society land.
[68] Sones and Mr. Dirckx knew each other. Both were connected to the Sones property. Both were connected to 1142.
[69] Mr. Dirckx and Hogan knew each other. They were long-time friends.
[70] Mr. Dirckx was, at the time, facing escalating hydro costs in relation to his indoor marihuana grow operation at 1142. The outdoor marihuana grow sites, of course, did not involve those hydro costs.
[71] The decision to begin the process of shutting down the indoor marihuana grow operation at 1142 was made in June 2014, the same month that the police were contacted about the marihuana grow sites on the Plant Society property.
[72] There is real evidence, by way of photographs, that Mr. Dirckx was among the marihuana plants on the Plant Society property for a significant period of time on August 23, 2014. The images at tab 1A of Exhibit 1, related to just one of the outdoor marihuana grow sites, span close to ten minutes in duration.
[73] There is real evidence, by way of photographs, that Mr. Dirckx and Hogan were doing more than simply gazing around these outdoor marihuana grow sites. Some of the images at tab 1A of Exhibit 1 (August 23, 2014) show Hogan, in very close proximity to Mr. Dirckx, with something in his hand, both a white object and a larger black pail. Some of them show Mr. Dirckx handling the plants. Some of them show Mr. Dirckx bending down among the plants. One of them shows Mr. Dirckx either holding or standing immediately beside a black object. One of the images at tab C of Exhibit 2 (also from August 23rd) shows Hogan appearing to hand a small cup or container to Mr. Dirckx. One of the images at tab D of Exhibit 2 (October 18, 2014) shows Mr. Dirckx and Hogan working in tandem, among the marihuana plants, with a black plastic garbage bag between them.
[74] As per paragraph 30 of Exhibit 1, on October 20, 2014, the police observed at 1142, Mr. Dirckx’s property, black pails which were similar to that being held by Hogan in the photograph evidence from August 23, 2014.
[75] On October 18th, the police discovered that the marihuana plants had been removed from the outdoor grow sites located on the Plant Society property. Just two days later, while searching 1142, the police observed and photographed marihuana plants hanging (see, for example, photos 0093 and 0096 at tab E of Exhibit 2).
[76] Given the totality of the evidence, is it conceivable that Mr. Dirckx stumbled innocently upon these outdoor marihuana grow sites, was tempted by curiosity to peek around but had nothing to do with cultivating the plants? Yes, that is conceivable.
[77] That is the type of remote possibility that leads to a frivolous doubt, however, which we tell juries to avoid. It is not something that leaves me with a reasonable doubt.
[78] Somebody established these outdoor marihuana grow sites. Somebody caused the plants to grow. Somebody was “cultivating” them. That did not happen naturally.
[79] The evidence points to two persons responsible for producing, that is cultivating, these outdoor marihuana plants – Mr. Dirckx and Hogan. The Crown has proven that beyond a reasonable doubt.
[80] There is no other reasonable inference to be drawn from the facts other than that Mr. Dirckx cultivated, or helped do so, the outdoor marihuana plants.
[81] Mr. Barrie is correct that not every piece of evidence points in favour of a finding of guilt against Mr. Dirckx. As one example, it is exculpatory that no fingerprints were found connecting Mr. Dirckx to the outdoor marihuana grow sites. As another example, it is exculpatory that there does not exist camera evidence of Mr. Dirckx having been at the sites more often, although that is explained in part by the lack of footage for a significant period of time (see paragraph 22 of Exhibit 1). As a third example, it is exculpatory that other unknown persons are in one or two of the camera images. Finally, it is exculpatory that there is no “smoking gun” in this case, such as a photograph of Mr. Dirckx pouring water or fertilizer over the outdoor marihuana plants.
[82] We must examine the evidence as a whole, however. I am convinced that it leads to no other rational result.
[83] To satisfy W.(D.), I have to say something about the evidence of Mr. Dirckx.
[84] It is often difficult for us trial judges to articulate precisely why we reject the evidence of an accused. Some cases lend themselves to that articulation easier than others.
[85] Simply put, the major reason why I neither accept nor am left with a reasonable doubt by the evidence of the accused that he had nothing to do with these outdoor marihuana grow sites is that it is illogical, nonsensical and unbelievable in the face of the trial evidence as a whole.
[86] If I was pressed to say something else, however, I would add that Mr. Dirckx’s evidence suffers from several important contradictions.
[87] Until part way through his cross-examination, the accused was adamant that the decision to shut down the indoor marihuana grow operation at 1142 was made sometime in September 2014. That would have placed greater distance in time between the discovery of the outdoor marihuana grow sites and the slow down at 1142.
[88] In cross-examination, however, Mr. Dirckx conceded that the decision to begin the shut-down of 1142 was made in June 2014.
[89] For most of his testimony, Mr. Dirckx was adamant that he never handled anything at the outdoor grow sites besides the plants themselves. That would have placed greater distance between his role and that of a cultivator.
[90] Eventually, in cross-examination, however, Mr. Dirckx conceded that he may have handled a black pail shown in one of the photographs at tab 1A of Exhibit 1.
[91] For most of his testimony, Mr. Dirckx was adamant that he and Hogan were only ever at the outdoor marihuana grow sites for very brief periods of time. That would have placed greater distance between his role and that of a cultivator.
[92] Eventually, in cross-examination, however, Mr. Dirckx conceded that the date and time stamps on the photographs prove otherwise.
[93] For these reasons, I reject the denials of the accused.
III. Conclusion
[94] I find Mr. Dirckx guilty of the charge. He produced, or helped produce, cannabis marihuana at the outdoor grow sites.
[95] I do not think that Mr. Dirckx did what he did out of greed or for trafficking purposes. I think that he did it simply because it became too expensive at 1142 for him to legally grow his own personal marihuana for legitimate medicinal purposes.
[96] In any event, what he did was illegal.
Conlan J.
Released: May 25, 2017