R. v. Dowling, 2011 ABQB 790

Court of Queen ’ s Bench of Alberta Citation: R. v. Dowling, 2011 ABQB 790 Date: 20111216 Docket: 090415670Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - David Allyn Dowling Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.J. Smith _______________________________________________________

Summary [ 1 ] Mr. Dowling applies under S. 24 (2) of the Charter of Rights and Freedoms to have evidence excluded which was seized pursuant to a search warrant executed at his home allegedly in breach of S. 8 of the Charter . Alternatively, Mr. Dowling applies for a stay of proceedings under S. 24 (1) of the Charter .

Facts [ 2 ] Mr. Dowling is charged with five offences all dated February 5, 2009. In abbreviated form they are production of, possession for the purposes of trafficking of and trafficking of cannabis marijuana, production of cannabis resin and possession of proceeds of crime. All but the proceeds of crime charge involve the Controlled Drugs and Substances Act ( CDSA ), sections 7(1) and 5(1 and 2). [ 3 ] At the material time, Mr.

Dowling was the holder of a valid licence from Health Canada permitting him to grow cannabis marijuana (49 plants) for one individual (Dambroso) who was licenced to use the cannabis marijuana he produced for her. Mr. Dowling ’ s licence permitted him to store 2205 grams of dried cannabis marijuana for the purposes of supplying Ms. Dambroso. [ 4 ] The search warrant obtained to gain legal entry to Mr. Dowling ’ s home followed an investigation by police which included information from Health Canada as to the terms of Mr. Dowling ’ s licence, as to the terms of Ms.

Dambroso ’ s licence, power readings, and surveillance of the residence. Surveillance on two consecutive days prior to the execution of the warrant showed a number of people entering and leaving Mr. Dowling ’ s home although not staying for long. It was known to investigators that Mr. Dowling maintained a political profile with the marijuana party. At the voir dire it was acknowledged that the series of visitors could have been due to his public profile. [ 5 ] Surveillance also showed Mr. Ulrich Rey attend empty handed at Mr. Dowling ’ s home and leave shortly after arriving carrying a plastic bag.

A traffic stop was initiated forthwith on Mr. Reh ’ s vehicle. A bag of what later tested to be cannabis marijuana was found under his driver ’ s side front seat in the same color of bag seen leaving the home. [ 6 ] Mr. Reh was charged. His charges were eventually dropped. He testified in these proceedings that he went to Mr. Dowling ’ s home to purchase cannabis marijuana. He was not the holder of a valid licence from Health Canada. He did indeed purchase four ounces of cannabis marijuana from Mr. Dowling for $825. He put the package under the seat of his car.

It was found there by the police at the traffic stop which occurred shortly after he left Mr. Dowling ’ s home. That quantity of marijuana would last him for between a month to a month and a half. He estimated that he had purchased marijuana from Mr. Dowling previously about ten times. [ 7 ] I am satisfied that Mr. Reh ’ s evidence is credible, backed up as it is by the surveillance for that one time purchase. [ 8 ] Mr. Reh also testified that he had asked his doctor to prescribe marijuana for him but his doctor preferred Lithium. Mr.

Reh nevertheless maintained that the marijuana worked for him generally and for his arthritis. [ 9 ] A search warrant was obtained to enter Mr. Dowling ’ s home. The tactical unit was used to enter the home. They elected for a hard entry with a ram because they had been advised that Mr. Dowling had been the subject of an illegal attack, a drug rip, about a month earlier and he had taken steps to arm himself with edged weapons. The tactical unit wore hard vests with identification printed front and back. They announced “ Police. ” Once the home was cleared, Mr.

Dowling was cuffed and seated in the living room where the lead investigator arrested him for possession for the purposes of trafficking. [ 10 ] Once the home was secured, the officers in charge of exhibits and the identification unit began their work. Numerous photographs were taken.

The officer in charge of the marijuana plants and related equipment for the production of marijuana, together with others, dismantled the grow operation and bagged most of the plants as garbage. [ 11 ] The grow operation was found to be separated into three stages consisting of small plants, plants in the vegetative state and mature plants. Five plants from each of these three groups of plants were randomly selected to form a sample which was sent for identification. Each of the three samples tested as cannabis marijuana.

Equipment seized included lighting, electrical, venting, nutrient monitors, beakers and such together with products such as fertilizer and butane. The evidence supports a finding of production of cannabis resin.

[12] Mr. Dowling was personally served with eleven Certificates of Analysis. [13] The rest of the plants, (there were 78 in all minus the 15 which were part of the three samples) 63 in total, were held by theproperty control unit of the Edmonton Police Service (EPS). [14] Constable Nay from the Drug Exhibit Control Unit filled in blanks on a form which appears to be addressed to Office ofControlled Substances and states “Request for Emergency Destruction of Plants”.

The form was faxed on February 6, 2009 to the faxnumber on the form and returned the same day signed by someone “for and on Behalf of the Minister of Health”. It appears the faxnumber to which it was sent is the number for Health Canada. The form indicates the signature attached authorizes destruction under S.29 of the Controlled Drugs and Substances Act. No mention was made on the form that Mr. Dowling was the holder of a licence underthe Marihuana Medical Access Regulations (MMARs). [15] The 63 remaining plants were destroyed by Constable Nay.

He understood that the signed form granted him permission.Constable Nay was not aware of and had not read S. 29 of the CDSA. At some point, he became aware that Mr. Dowling was a licenceholder. He did not tell Health Canada of this fact because it was not on the form. I am satisfied he acted in the ordinary pursuance of hisduty absent any bad faith whatsoever. Issue [16] The defence concedes that the manner in which the police conducted the search of the home was likely defensible in law. Iagree. The information gained by the police in their investigation justified the hard entry and the wearing of hard vests.

Although Mr.Dowling was upset by the entry by the police, the police were clear about who they were. There is no evidence that there was illtreatment of Mr. Dowling. Nor is there evidence that his home was damaged beyond what was authorized in the warrant and somedamage to the front door. [17] However, the defence argues a different point. It is that Mr. Dowling was the holder of a valid licence from Health Canada tocultivate marijuana for Ms. Dambroso. By taking down his production facility and destroying all of his plants, the police have interferedwith Mr.

Dowling’s rights under his licence in a manner which ought to attract sanction either under S. 24 (1) or (2). Further, the policepaid no regard to Ms. Dambroso’s rights. The marijuana being grown by Mr. Dowling was for Ms. Dambroso. Their actions in takingdown Mr. Dowling’s grow operation and in destroying all of the plants was egregious. It amounts to a breach under S. 8 of the Charterwhich ought to attract sanction under S. 24. [18] The issue may be framed as whether the manner in which the police dealt with Mr. Dowling’s marijuana and growingoperation was excessive given his rights under the licence and Ms.

Dambroso’s rights under her licence. Second, can the actions of thepolice be defended under the analysis in R. v. Grant 2009 SCC 32 [2009] 2 S.C.R. 353 (SCC). Last, ought there to be ajudicial stay in these circumstances. Discussion Is there a breach of Mr. Dowling’s S. 8 rights? [19] R. v. Collins (1987), (SCC), 33 C.C.C. (3d) 1 (S.C.C.) sets out the three part test for determining whether abreach of S. 8 has occurred. It is: 1. Was the search authorized by law, 2. Was the law that authorized the search reasonable, and

3. Was the manner in which the search was conducted reasonable. [ 20 ] Here, there was a search warrant based upon reasonable and probable grounds. An important aspect of those grounds was the involvement with Mr. Reh and the knowledge that Mr. Reh had no license. S. 11 of the CDSA is not being attacked. The first two requirements under Collins are proven. [ 21 ] The defence rests its argument on the manner in which the search was carried out and specifically the dismantling and seizure of the grow operation equipment and the destruction of the plants left over after the samples were taken.

The evidence on the voir dire justifies the manner of the search as conducted by the tactical unit followed by the identification and exhibit officers otherwise. I will focus these reasons on the objections raised by defence counsel. [ 22 ] Justice Acton said in R. v. Krieger 2000 ABQB 1012 : [52] The object of s. 5(2) and the regulations to the CDSA is to regulate the distribution of drugs in Canada as a matter of public health and safety. This is a legitimate objective. Providing prohibited products to others opens a Pandora's box of problems for both society and for the provider of that product.

Clearly, in the pharmaceutical industry, there are strict controls on who may prepare, prescribe and dispense pharmaceuticals. It would be inappropriate, in my view, for the Courts to allow cannabis marijuana to bypass all of those safety provisions. [53] To deny Mr. Kreiger the right to possess marijuana for the purpose of trafficking does not create any hardship for Mr. Kreiger or for those who might be similarly situated, to the extent that they may also wish to traffic in the drug.

The Applicant argues that the hardship is suffered by members of the compassion club to whom he supplies marijuana for medicinal purposes. However, their right to possess marijuana for personal therapeutic use does not translate into a right on Mr. Kreiger's part to traffic. [54] I recognize that the absurdity which I acknowledged above remains. However, I am satisfied that s. 5(2) is an important safeguard preventing unregulated distribution of powerful drugs. [ 23 ] S. 5(2) of the CDSA , and by inference S. 5 (1) with which Mr. Dowling is charged in relation to his activities with Mr.

Reh, provides the legal context within which to consider the MMARs under which Mr. Dowling received his license. Trafficking outside of the MMARs is illegal. The objective of the MMARs is to create a legal, safe and reliable distribution system for marijuana for people/patients who have a medically demonstrated need for it. Like with pharmaceuticals, expertise is required to determine which patients will benefit from the use of it. [ 24 ] The MMARs themselves define eligibility for licenses based upon the absence of conviction of a designated drug offence for a 10 year period.

They permit inspections for the purpose of verifying that production is in accordance with the MMARs and a licence to produce. They permit revocation of a production license if the licensee is found guilty of a designated drug offence committed after the license issued. The MMARs require compliance to retain the privilege granted by the license. The MMARs appear to grant no tolerance for illegal activity. [ 25 ] Stating the obvious, trafficking and production of cannabis marijuana is illegal in Canada except under the MMARs. That is the hierarchy of the scheme under which Mr. Dowling ’ s license was granted.

On this voir dire, the evidence is that Mr. Dowling was operating under his license and illegally outside of it. Whether the limits of his license were reasonable is not a matter to be determined on this voir dire . Given the illegality of his activity, it is justifiable that the equipment and associated products were seized during the search. [ 26 ] The CDSA , in Sections 26 to 29 permit destruction of seized controlled substances. S. 26 permits destruction to address security, health and safety needs. S. 27 permits destruction following completion of proceedings. S. 28 permits destruction with consent.

S. 29 permits destruction of plants from which a controlled substance can be extracted that is being produced otherwise than under the authority of and in accordance with a license issued under the regulations . While it was not argued in detail, this

section may permit destruction in these circumstances. [ 27 ] Constable Nay had not read these sections of the CDSA but was, in his view, proceeding normally to request destruction of the plants. In light of all of the foregoing, it was not unreasonable for him to proceed as he did despite the existence of the license

whether or not he knew in advance of the Request for Destruction of the existence of the license. [ 28 ] I therefore find that there was no breach of S. 8 of the Charter . Ought there to be a remedy under S. 24 (2)? [ 29 ] If I am wrong in finding no breach of S. 8 then I turn to the analysis under Grant . [ 30 ] In my view, it is not proven that the charter-infringing state conduct was serious. Mr. Dowling failed to adhere to the restrictions on his license.

The officers who took down his grow operation and who destroyed the plants were acting as they normally do in the face of trafficking, with no animus directed at Mr. Dowling and on evidence that he was trafficking to Mr. Reh. They took steps in good faith that the steps were normal and, in their view, needed to stop further trafficking. Although the plants were destroyed samples were taken in a sensible fashion. In my view, it cannot be said that the state conduct amounts to a serious violation in these circumstances. [ 31 ] Mr.

Dowling ’ s charter-protected interests, his right to privacy in particular, were interfered with but on reasonable and probable grounds. Mr. Dowling ’ s statement was voluntarily given. Mr. Dowling ’ s dignity was, however, injured. He has a reputation as a public figure. His obligation to Ms. Dambroso was interrupted. The argued unreasonableness of the search (seizure of the materials constituting the grow operation and destruction of the plants) prevented Mr. Dowling from continuing to produce and to sell to Ms. Dambroso under the license. This was his obligation, her right and his livelihood.

In my view, the evidence of the criminal activity justifies the injury to Mr. Dowling ’ s dignity. Injury to reputation and interruption of livelihood given the evidence of trafficking fall short of the sort of injury to dignity that ought to attract sanction. Further, Grant requires weighing of Mr. Dowling ’ s charter-protected rights, not the rights of Ms. Dambroso. [ 32 ] Given the illegality of trafficking in cannabis marijuana and the reasons for that law in Canada, society ’ s interest in adjudication on the merits of this case requires the evidence to be admitted.

Without the drug exhibits, no trial would take place. The scheme under the MMARs is meant to provide safe access to patients who will benefit from the use of marijuana. Proper administration of that goal is in the interests of society not unlike the requirements around approving and prescribing of pharmaceuticals. Mr. Reh ’ s doctor refused to prescribe marijuana for Mr. Reh who takes Lithium instead. Mr. Dowling, by facilitating Mr. Reh ’ s self medicating, placed himself in an untenable position, precisely the kind of position the law seeks to prevent in order to promote a safe method for delivery.

While trafficking in marijuana is not a most serious offence, regulation of its provision to vulnerable persons is important to society. [ 33 ] In all of the circumstances I find the administration of justice will not be brought into disrepute by admission of the evidence. Ought there to be a remedy under S. 24 (1)? [ 34 ] In R. v.

Svekla , 2010 ABCA 390 the Court said: 24 A stay of proceedings is only appropriate when: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice: Regan para 54.

A stay should only be granted ‘ “ in the clearest of cases ’ , where the prejudice to the accused ’ s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued ” : O ’ Connor para 82. 25 At paragraph 55 of Regan , the Supreme Court added that most cases of abuse of process will cause prejudice by rendering the trial unfair. The degree of prejudice resulting from a Charter breach is to be considered at the remedy stage: R. v. Carosella , 1997

402 (SCC), [1997] 1 S.C.R. 80 at para 27, 142 DLR (4th) 595. 26 The Court also noted that there may be cases where there is uncertainty about whether the abuse is sufficient to warrant thedrastic remedy of a stay: Regan at para 57. In those cases (quoting from Canada (Minister of Citizenship and Immigration) v.

Tobiass,(SCC), [1997] 3 S.C.R. 391 at para 92), “it will be appropriate to balance the interests that would be served by thegranting of a stay of proceedings against the interest that society has in having a final decision on the merits” and “a compelling societalinterest in having a full hearing could tip the scales in favour of proceeding”. 27 In JGB, the issue was the effect of the loss of a written statement given by the complainant to the police a few days after heroriginal oral statement.

Her oral statement, three subsequent statements and her preliminary inquiry evidence were available for thepurposes of cross-examination. The Court stated that the mere fact of missing evidence would not establish irreparable harm to the rightto make full answer and defence: para 8. “Actual prejudice occurs when the accused is unable to put forward his or her defence due tothe lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult”: ibid.

In making thisassessment, the existence of other evidence containing essentially the same information is “an essential consideration”: ibid. The Courtlisted twelve factors that courts have taken into account in making the “very fact specific” determination of whether to grant a stay in theface of lost evidence: para 9. [35] I am of the view that there was no abuse of process. The evidence is not lost. Samples were appropriately taken. I find there isno basis upon which to grant a stay under S. 24(1) of the Charter. Conclusion [36] There was no breach of Mr. Dowling’s rights under S. 8 of the Charter.

Nor is there a right to remedy under either subsectionof S. 24. The defence application is dismissed. As previously agreed this matter is returned to court January 19, 2012 at 9:30 a.m. to setthe continuation of the matter. Heard on the 7th, 8th and 9th days of December, 2011. Dated at the City of Edmonton, Alberta this 15th day of December, 2011. L.J. Smith J.C.Q.B.A. Appearances: Adam Halliday, Crown Prosecutor, Public Prosecution Service of Canada

For the Crown Philip G. Lister, Q.C. For the Accused