Court File and Parties

COURT FILE NO.: CR-17-0036-00 DATE: 2018/08/29 ONTARIO SUPERIOR COURT OF JUSTICE EAST REGION (BELLEVILLE)

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – MALGORZATA SZPYRKA Applicant

Counsel: James Meloche and Spencer Shaw, for the Respondent Leo Adler, for the Applicant

HEARD at Belleville: May 17, 2018

Tausendfreund, J.

Certiorari Decision

Overview

[1] Following a 15 month multi-jurisdictional investigation entitled “Project Silkstone”, the Applicant was arrested on February 22, 2017. She was charged with possession of cannabis marihuana (“marihuana”) for the purpose of trafficking and producing marihuana, in relation to her alleged involvement in a large scale commercial marihuana production and trafficking operation at 17 Bramsteele Road in Brampton, Ontario (the “Bramsteele property”).

[2] On February 22, 2017, the Ontario Provincial Police executed a search warrant at the Bramsteele property. It was an industrial warehouse building. Inside, the police located 7,241 marihuana plants and 160 pounds of dried marihuana. The estimated total value of all products seized from this building is $1,976,420.

[3] Three persons including the Applicant were arrested inside the building. Stratis Koronis pleaded guilty and Ezra Harely was committed on consent to stand trial for possession for the purpose of trafficking and production of marihuana and possession of property obtained by crime under $5,000.

[4] The Applicant was committed to stand trial on both charges. She brings this Application for Certiorari to quash the committal to stand trial.

Evidence at the Preliminary Inquiry

[5] Project Silkstone involved police surveillance between November 2016 and February 2017 on Stratos Koronis at the Bramsteele property.

[6] A vehicle registered to the Applicant was observed parked in the parking lot of the Bramsteele property on November 22 and 23, 2016 and again on January 11, 12 and February 22, 2017.

[7] At 7:14 a.m. on February 22, 2017, an unknown person wearing a black and white dark coat exited the vehicle connected to the Applicant. That person briefly paused at the door and was not observed leaving the building prior to 10:05 a.m. when a search warrant for the building was executed by the police. The officers initially were unable access the locked front door of the premises, as no one responded. This required the police to forcefully breach the front door.

[8] Once officers entered the premises, they discovered a large scale commercial marihuana grow operation within the building.

[9] The Applicant admitted she was inside the building and was arrested by the police as she emerged from a doorway of a room accessible through vertical plastic flaps.

[10] The Applicant advised the police that her purse containing her identification was in a room on the upper floor, as were her black coat and toque.

[11] The Applicant stated that the keys to her vehicle parked at the front of the building were in a clear plastic bag in a grow room containing marihuana plants.

[12] At the time of her arrest, the Applicant presented with a bandana on her head and wearing two pairs of pants.

Reasons of the Preliminary Inquiry Judge

[13] A summary of these reasons is as follows:

• There was no evidence challenging or opposing the direct evidence that there was any other purpose for the Bramsteele property other than a significant, sophisticated operation for the production and cultivation of marihuana.
• On five occasions, including February 22, 2017, a vehicle connected to the Applicant was located at this address. There was evidence that the license plate appeared to be different and that on two of these occasions, a male was seen either arriving or leaving in this car. Although these differences are to be left to the jury, this evidence connects this vehicle to the Applicant at the building.
• The Applicant arrived at the building at 7:14 a.m. in the car connected to her. After having gained entry into the building, the police located the Applicant’s coat and purse in an upstairs room. She was seen coming out of an enclosed area with a plastic doorway where there were small plants or clones and plants of various sizes and development. The Applicant’s keys to her vehicle were found in a plastic bag in an area where the plants were located. The door to this enclosed area had a sign stating, “No entry when red light is on”.
• The Applicant had no dirt on her hands or her clothing. She wore two pairs of pants. This fact connects the Applicant with the operation in the building in a substantial and direct way.
• Based on that evidence, it would be difficult for a jury, properly instructed, to conclude that the Applicant had no knowledge of the plants, that she did not participate in or was a party to the growing and nurturing of these plants. Based on these facts and on the sophistication of this grow-op, a jury could reasonably conclude that the possession was for the purpose of trafficking.
• It would be appropriate and permissible for a jury to be instructed that they could look at the totality of the evidence and to infer that the Applicant was involved in the cultivation, production and possession for the purpose of trafficking marihuana at this address.

Position of the Applicant

[14] The Applicant submits that in committing her to stand trial, the Preliminary Inquiry Justice exceeded his jurisdiction. These errors are said to be:

a) Insufficient evidence that the Applicant had the requisite control over the premises and/or the marihuana plants. b) The absence of evidence that the Applicant was involved in cultivating and/or harvesting the marihuana plants. c) Committal for trial was based on speculation rather than permissible inferences.

Standard of Review

[15] The jurisdiction of a Preliminary Inquiry Justice is statutory and based on s. 548(1) of the Criminal Code. It reads:

Order to Stand Trial or Discharge

548. (1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction

[16] The scope of review on Certiorari is limited to determining if there has been a jurisdictional error. Only where the Preliminary Inquiry Justice acted in excess of his or her jurisdiction may the reviewing court intervene: R. v. Russell, 2001 SCC 53 at paras. 19 and 20.

[17] The reviewing court may not overturn the decision merely because the Preliminary Inquiry Justice made an error of law or reached a conclusion different than the reviewing court would reach: Russell at paras. 19 and 20.

[18] As stated by the Supreme Court of Canada in R. v. Arcuri, 2001 SCC 54 at para. 21:

The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”: United States v. Shephard, [1977] 2 S.C.R. 1067 at paras. 37-40. Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which there is admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080.

[19] If there are competing inferences, those are for the trier of fact to resolve, not a Preliminary Inquiry Justice: R. v. Sazant, 2004 SCC 77 at para. 23.

[20] All interpretations of the evidence and permissible inferences that can be drawn from the evidence must be resolved in favour of the Crown: Arcuri at para. 33.

[21] The inferences to be drawn from circumstantial evidence need not be “compelling” or even “easily drawn” in order to be reasonable or logical: R. v. Katwaru at para. 40.

[22] A “scintilla of evidence” with respect to each of the requisite elements of the offence is sufficient for a committal to stand trial: R. v. Mathisen, [2004] O.J. No. 2731 (ONCA) at para. 2.

[23] However, it is a jurisdictional error for a Preliminary Inquiry Judge to commit on inferences that cannot be reasonably drawn or where there is no evidence on an essential element of the offence charged: R. v. Brown, 2012 ONSC 6565 at paras. 20 and 21.

Analysis

[24] The Applicant admits that the evidence supports the finding that the police found her at the Bramsteele property on February 22, 2017 while she was coming from a room where marihuana plants were growing. However, mere presence is not sufficient, the Applicant states. Additionally, the Applicant states that there was insufficient evidence on which a jury properly instructed could come to the reasonably reached inference that the Applicant was a party to the cultivation, production and possession for the purpose of trafficking of marihuana in the Bramsteele property.

[25] The position of the Applicant is three fold:

a) The Preliminary Inquiry Justice committed a jurisdictional error by improperly assessing the evidence adduced and by drawing conclusions which amount to speculation. b) The Crown failed to adduce any evidence that the Applicant exercised any measure of control over the marihuana seized from the building. c) The Crown failed to adduce any evidence that the Applicant participated in the production of the marihuana.

Are the Inferences Drawn by the Preliminary Inquiry Judge Reasonable?

[26] The Applicant submits that in addition to a large scale marihuana operation, the evidence also supports the inference that the Bramsteele property additionally housed a legitimate business. The Applicant points to the evidence of:

a) a sign outside the building that Visa credit cards are accepted; b) an advertisements for aquarium products in the main office area; and c) the presence of an office.

[27] The evidence indicated that marihuana production was widespread through the entirety of the Bramsteele building, including hallways. The smell of marihuana was apparent immediately upon entering the building. The building itself was locked and inaccessible during standard business hours. I find that the evidence of other possible businesses in the building is too trivial and unsubstantial to support an inference that the Bramsteele property may have housed or supported one or more legitimate businesses. If I were incorrect in that finding, I note that this would be a competing inference which should be left to a trier of fact.

[28] The Applicant states that a person without specialized knowledge would not recognize the smell or appearance of marihuana and that there was no evidence that the Applicant was familiar with the properties of marihuana. The Applicant was found exiting a room where marihuana plants were growing. She was wearing a bandana and two pairs of pants. I agree with the finding of the Preliminary Inquiry Justice that this clothing connects the Applicant with the operation in the Bramsteele property in a very substantial and direct way. The question of whether the smell and appearance of marihuana in and of itself would have put the Applicant on notice that she was in a building that housed an illegal marihuana grow operation is a matter for the jury.

[29] I find that the evidence supports the inference made by the Preliminary Inquiry Justice that the “sole purpose” of the Bramsteele property was the marihuana grow operation. I note again that where competing inferences exist, only inferences that favour the Crown are to be considered on the issue of committal: Sazant at para. 23.

Elements of the Offence

[30] The mere presence of the Applicant at a location where criminal activity occurs is not sufficient to establish committal. “Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements: R. v. Coke, [1996] O.J. No. 808 at para. 9.

Possession for the Purpose of Trafficking

[31] The Applicant admits that marihuana was being produced in the building and that it was for the purpose of trafficking. However, she submits that the evidence does not support an inference that the Applicant exercised any measure of control over the marihuana in the building.

[32] To find constructive possession, the Crown must prove that the Applicant had both knowledge and control over the marihuana: R. v. Morelli, [2010] 1 S.C.R. 235 at para. 17 and R. v. Tran, 2015 ONSC 4009 at para. 35.

[33] The Applicant was given apparently unfettered access to this illegal commercial production operation. This gives rise to a reasonable inference that the Applicant exercised a measure of control over the marihuana. Her personal belongings were in an upstairs room and her car keys were in the room containing marihuana plants where she was discovered by the police. She had been there for about three hours.

[34] I find that it is a reasonable inference pursuant to s. 21(1) of the Criminal Code that the Applicant is a party to the production and trafficking operation in the Bramsteele property.

Evidence of Production

[35] The Applicant urges that her presence by itself in the building is insufficient for a reasonable inference that she was participating in the production and trafficking of marihuana. She also points to the fact that she had clean hands at the time of her arrest.

[36] There is no evidence of an innocent reason for the Applicant to have been in that building for almost three hours. The fact of the Applicant’s clean hands does not diminish the finding by the Preliminary Inquiry Justice that the direct physical evidence connects the Applicant with the operation in that building in a substantial and direct way and that a properly instructed jury could reasonably infer that the Applicant was a party to the cultivation, production and possession for the purpose of trafficking of marihuana in the Bramsteele property.

[37] This Application with respect to both counts is dismissed.

Tausendfreund, J.

Released: August 29, 2018