R. v. Dowling, 2012 ABQB 322

Court of Queen’s Bench of Alberta Citation: R. v. Dowling, 2012 ABQB 322 Date: 20120516 Docket: 090415670Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - David Allyn Dowling Applicant Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. Restriction on Publication: By Court Order, information that may identify the witnesses described in this judgment may not be published, broadcast, or transmitted in any manner.

There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. See the Criminal Code, s. 486.5 . _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice L.J. Smith _______________________________________________________

[ 1 ] These reasons pertain to Mr. Dowling’s application under S. 7 of the Charter of Rights and Freedoms ( Charter ) for a stay of charges under the Controlled Drugs and Substances Act (CDSA) and the disposition of five charges against him. Charges [ 2 ] Mr. Dowling is charged with five charges under the CDSA . In short form, they are that he on February 5 th , 2009 - 1.Unlawfully produced Cannabis Marihuana contrary to s. 7 (1) of the CDSA ; 2. Unlawfully possessed Cannabis Marihuana in an amount over three kilograms for the purpose of trafficking contrary to s. 5(2) of the CDSA ; 3.

Unlawfully had in his possession Canadian currency knowing it was obtained by the commission of an indictable offence contrary to s. 355 (

B) of the Criminal Code ; 4. Unlawfully produced Cannabis Resin contrary to s. 7 (1) of the CDSA ; 5. Unlawfully trafficked in Cannabis Marihuana in an amount under three kilograms contrary to s. 5 (1) of the CDSA . [ 3 ] It is noteworthy that Mr. Dowling was not charged with simple possession. Facts [ 4 ] At the material time, Mr. Dowling was the holder of a valid Designated Person Production Licence (DPPL) issued by Health Canada under the Medical Marihuana Access Regulations (MMAR). [ 5 ] The terms of the DPPL permitted Mr.

Dowling to have a maximum of 49 plants under production at his production site, his home and to store a maximum of 2205 grams of dried marihuana. It permitted Mr. Dowling to produce for Ms. D. [ 6 ] Ms. D held a valid Authorization to Possess (ATP) which designated her producer as Mr. Dowling. [ 7 ] Surveillance was initiated on Mr. Dowling. Numerous visitors were noted coming and going from his home although his political profile with the Marihuana Party could be consistent with visitors. [ 8 ] Mr. R was seen to enter Mr. Dowling’s home and to leave about one hour later with a package in hand. Mr.

R’s vehicle was stopped by police who found a package noted to be similar to the one carried out of Mr. Dowling’s home under the front seat. Mr. R was arrested and charged. He was offered a waiver of the charge for his statement implicating Mr. Dowling. At his court date, Mr. R’s charges were dropped although the deal which the police had offered was not reiterated by the Crown of the day. [ 9 ] On the strength of Mr. R’s arrest the police obtained a search warrant for Mr. Dowling’s home. There they discovered a number

of items including the following: - A three stage cannabis marihuana grow operation complete with ventilation, lights, fertilizer, timers and other accouterments of such an operation; -12 plants were ready for harvest; - a number of others were small plants in large pots; - a tray of small plants or clones were leafing out in a root starter; - approximately 1560 grams of dried marihuana in various packages, some loose and including some shake.

Roaches and plants are excluded from this weight; - two small vials of cannabis resin; - accouterments consistent with production of cannabis resin including laboratory glassware and evidence of substantial butane use; - large quantities of roaches; - about $2000 cash hidden under fabric in a closet, folded and bound in an elastic. [ 10 ] Five plants from each stage of the grow were tested and were positive for cannabis marihuana. The plants were destroyed after seizure. [ 11 ] If Mr. R’s evidence is accepted, he purchased one-quarter pound of cannabis marihuana for $825.

The sum of $825 for one- quarter pound of marihuana is under the black market price. [ 12 ] Mr. R never has had and did not have at the material time an ATP. He had sought permission from his doctor to use marihuana to stave off bipolar episodes but was told that this affliction would be better treated with conventional medication, Lithium. I infer Mr. R acceded to his doctor’s advice regarding treatment for this ailment. However, Mr. R still bought marihuana to treat pain from arthritis. He gave no evidence that he had sought a doctor’s permission to use marihuana for treatment of arthritis.

He characterized his own use of Mr. Dowling’s marihuana as recreational. Mr. Dowling’s Evidence [ 13 ] Mr. Dowling maintained that Mr. R came to sell him marihuana. He maintains that Mr. R entered the home with the marihuana inside his coat sleeve. Due to a previous strained relationship, Mr. Dowling refused to purchase from Mr. R and Mr. R left holding the marihuana. [ 14 ] Further, Mr. Dowling maintained that he possessed the laboratory equipment consistent with producing cannabis resin to clean and resell it. The two vials of resin found by the police were from harvesting the crop he was authorized to grow.

During harvest one’s fingers and scissors become sticky with resin. He used a substance, not heat, to remove the resin from his fingers and scissors.

[ 15 ] He maintains the large supply of butane was to fuel his cook stove to avoid electricity use. Further the many boxes of butane containers were being held for recycling, and were not full containers. [ 16 ] He maintains that the plant count by the crown expert witness, 78 in total, is wrong since it does not account for clones and male plants in his operation. [ 17 ] Mr. Dowling admitted to using cannabis marihuana for his own medical complaints. Any overage in quantity was for personal use.

Although he is a strong advocate for freedom of choice regarding marihuana use in Canada, he maintains that he abided by the terms of his licence by cultivating within its terms and never supplying non-ATP holders. Mr. Dowling’s personal and political beliefs regarding the law and regulations governing marihuana use in Canada are largely irrelevant to the charges before the Court. [ 18 ] Both Mr. Dowling and Mr. R have motive to give self-serving evidence. Their prior joint and individual history is not determinative of credibility in my view.

I turn to the evidence of their behaviour on the day in question. [ 19 ] It does not make plain common sense that Mr. R or any customer would attend upon a known producer to sell that producer marihuana when the producer has a supply on hand. It does not make sense that Mr. R would hide the marihuana while approaching the residence and display it upon leaving. If the two men were not getting along, it does not make sense that they would stay together for about an hour. [ 20 ] Mr. R’s evidence is consistent with these circumstances.

He approached the home empty handed, purchased from the producer and left with the bag of marihuana. The two men were together for about an hour because they were not alienated and were visiting while doing business. [ 21 ] Further, Mr. Dowling’s evidence of using butane for his cook stove to save utility costs does not make sense in the context of his purchase of yet a second cook stove using a different fuel and the overall utility cost of the grow operation. Nor does his evidence that the boxes of butane containers have been collected over a long, long time and are awaiting recycling.

Some may be waiting for recycling, but it appears many of the boxes are unopened. Further, I find his suggestion that he purchased precisely the lab equipment needed to make resin for resale after cleaning unbelievable. It is self-serving. [ 22 ] Mr. Dowling asserts that Health Canada allows a licencee to have three clones per plant allowed in the licence. He does not produce proof of such, but I assume it is true partly because a clone does not remain a clone for long. Once a clone roots it is a plant. Mr. Dowling asserts the tray of clones/plants were clones. In my view, they look like plants.

They were well leafed out. They were planted in a root boosting material and appeared to need repotting soon. The expert witness in this matter, Ms. C, determined they were plants. I accept her evidence even though it is based on the photographs in part because the photographs make the conclusion obvious. [ 23 ] Mr. Dowling attempted to reduce the number of plants in his grow operation also by suggesting that the destruction of his crop prevented him from showing that the total number could be whittled down to the allowed 49 plants by identifying that some of the plants were male.

Given my concerns with his evidence stated foregoing, and that he was 28 plants over his permitted amount of 49, I decline to accept that such an exercise would be successful. [ 24 ] It is noteworthy that Mr. Dowling’s evidence was inconsistent with that of Ms. D as to what she paid him for her supply. She had no motive to lie. [ 25 ] Mr. Dowling characterized the cash found as his life savings. I find this assertion is improbable. If the cash were indeed his life savings, my view is that it would have been better protected particularly after the ‘drug rip’ that was suffered by Mr. Dowling about a month previous.

The existence of the cash stash is consistent with Mr. R’s evidence of the transaction between he and Mr. Dowling. [ 26 ] On all of the evidence, I disbelieve Mr. Dowling where his evidence touches upon the charges before the Court.

Finding on the Merits Count 1 [ 27 ] It is proven beyond a reasonable doubt that Mr. Dowling produced cannabis marihuana in excess of his licence by 29 plants. [ 28 ] Mr. Dowling’s licence states “The maximum number of marihuana plants that you may have under production ... is 49 plants .” [Italics added] [ 29 ] It is suggested that plants under production must be taken to refer to those ready for harvest or the 12 plants which were mature. I reject this characterization of the words under production .

In my view, production is a process which refers to the growing of the plants, not just the final stage of harvest. [ 30 ] Mr. Dowling is guilty on Count 1. Count 2 [ 31 ] An element of count two is that the quantity of cannabis marihuana possessed for trafficking has to exceed three kilograms or 3000 grams. The Crown has failed to prove that quantity. Further, the quantity of cannabis possessed by Mr. Dowling, excluding the plants and roaches, but including the resin, is under the quantity permitted by his licence. [ 32 ] Mr. Dowling is not guilty on Count 2.

Count 3 [ 33 ] It is an irresistible inference that part of the cash found during the search was cash provided by Mr. R. This direct link leads to a conclusion beyond a reasonable doubt that the cash found is proceeds from knowingly committing an indictable offence. Ms. D was to attend the following day leading to the inference that the cash was not from the legitimate exercise of the DPPL. Surveillance disclosed numerous persons attending Mr. Dowling’s residence prior to the offence date. [ 34 ] Mr. Dowling is guilty on Count 3. Count 4 [ 35 ] I do not doubt that Mr.

Dowling had produced cannabis resin in the past and that he planned to produce it in the future. However, the small amount of resin found and Mr. Dowling’s evidence on one source of resin being from the natural stickiness associated with harvesting, while not believed, has left me in doubt that at the material time he was producing cannabis resin.

[36] Mr. Dowling is not guilty on Count 4. Count 5 [37] I disbelieve Mr. Dowling regarding his transaction with Mr. R. I accept Mr. R’s evidence. Therefore, the Crown has provenbeyond a reasonable doubt all of the elements of the offence of trafficking. [38] Mr. Dowling is guilty on Count

Section 7 of the Charter of Rights and Freedoms [39] Mr. Dowling applies under

section 7 of the Charter for a stay of the charges with which he is charged and for a declaration ofunconstitutionality of sections 4, 5 and 7 of the CDSA and some sections of the MMARs. [40] Generally, his assertion is that cannabis ought to be legalized and that the MMAR are unduly restrictive, impossible to understand,and there is no effective support for licensees from Health Canada.

He states that the MMAR prevent ill people requiring cannabis fortreatment from a safe and legal way to meet their medical needs. [41] He particularizes his notice to include a claim that the restriction of a DPPL holder to produce for only one ATP is overbroad. Hespecifies the difficulties in obtaining medical approval and the restriction to production of dried cannabis only. [42] Since Mr. Dowling is charged with offences under S. 7(1) and 5(1) of the CDSA he has standing to challenge the constitutionalityof these sections. If either fell, so would the conviction under S. 355(

B) of the Criminal Code. [43] To succeed in a challenge under S. 7 of the Charter Mr. Dowling has the onus to prove on the balance of probabilities that theimpugned legislation deprives him of life, liberty or security of person and that the deprivation fails to accord with the principles offundamental justice. [44] In my view, the risk of being sent to jail engages Mr. Dowling’s liberty interest. R. v. Malmo-Levine; R. v. Caine, [2003] 3S.C.R. 571, 2003 SCC 74; R. v. Parker (2000), (ON CA), 146 C.C.C. (3d) 193 (Ont. C.A.); Canada (AttorneyGeneral) v.

PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134. [45] Mr. Dowling’s right to life is not engaged. Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3S.C.R. 519, Chaoulli v. Quebec (A.G.), 2005 SCC 35. [46] Mr. Dowling is not charged under S. 4 of the CDSA. He led evidence of his own maladies. He led no evidence of attempts toobtain his own ATP or of difficulties in obtaining his own source of marihuana. His right to security of person is not engaged. R. v.Morgentaler, (SCC), [1988] 1 S.C.R. 30; Rodriguez v. British Columbia (Attorney General), supra. [47] Mr.

Dowling’s liberty interest under s. 7 of the Charter is engaged. However, it must also be determined whether the potential forinfringement of his liberty is justly limited in accordance with the principles of fundamental justice. [48] Two state interests motivate regulation and criminalization of cannabis marihuana. They are the negative health effects associatedwith the use of cannabis marihuana (set out in Malmo-Levine and R. v. Caine, supra) and Canada’s obligation to comply with its

international treaty obligations. [ 49 ] To determine whether the law is arbitrary it is useful to examine the relationship between the law and the state’s interests. One might ask whether the deprivation of a right “bears no relation to, or is inconsistent with, the state interest that lies behind the deprivation.” Or one could ask whether the relevant sections of the CDSA or the MMAR are unrelated or inconsistent with the objectives of protecting health and public safety. ( Canada (Attorney General) v.

PHS Community Services Society , supra ). [ 50 ] Prior courts have found that the law in question is not arbitrary but is rationally connected to a reasonable apprehension of harm. ( R. v. Malmo-Levine and R. v. Caine , supra; Canada (Attorney General) v. PHS Community Services Society , supra ). I see no reason to disagree given the evidence to support a departure from these conclusions is the evidence of Mr.

Dowling which amounts to opinion evidence based upon his own experience, anecdotal stories and research not provided to the court. [ 51 ] Another method of alleging arbitrariness is to assert the relevant sections of the CDSA and/or the MMAR are overbroad. Mr. Dowling has made such an allegation.

He asserts the law and regulations unduly restrict ill people from obtaining a safe and legal supply, unduly restrict DPPL holders to producing for one person only, present difficulties in obtaining medical approval and unduly restrict DPPL holders to production of dry cannabis. [ 52 ] The state’s interest in ensuring marihuana is controlled and available only to those who are in demonstrable medical need is not a trivial objective. The MMAR provide an avenue for exemption from criminality under certain circumstances. [ 53 ] In R. v.

Jamali , 2011 ONCJ 196 , the Court emphasized the need for evidence (in that case demonstrating a lack of adequacy of government supply) to underpin a finding of constitutional non-compliance. Times change and the MMAR change. A declaration of constitutional invalidity must address the law and circumstances which the accused was facing at the time of his charges. ( R. v. Jamali , supra ). [ 54 ] The evidence led by Mr. Dowling fails to establish grounds for a finding of arbitrariness due to over breadth. He and Ms. D were able to navigate the MMAR to ensure she received a safe and legal supply from him.

She created her own butter. There is no evidence of any other person requiring resin or any form of cannabis other than dried. There is no evidence that Mr. Dowling sought a medical approval and was refused. Mr. R gave evidence that he sought a doctor’s approval for marihuana to treat his ailment, but he was specifically directed to a different, well known treatment and has accepted that advice in relation to that ailment. Mr. R gave no evidence that he sought and was refused a doctor’s permission to use marihuana for his arthritis pain. There is no evidence of any ATP holder seeking to have Mr.

Dowling produce for them in addition to Ms. D. [ 55 ] Without evidence of need to modify the MMAR to address the challenges alleged there is no basis to give relief to Mr. Dowling. He and Ms. D were working successfully within the MMAR to produce and transfer safe, legal marihuana to Ms. D who demonstrated a medical need for it. Instead of calling evidence of others who had tried and failed to obtain a doctor’s prescription, or ATP holders who wanted to buy Mr. Dowling’s cannabis, or anyone who could testify as to the superior medical benefit of resin over dried marihuana, Mr.

Dowling chose to testify generally on his belief in the unconstitutional limits of the CDSA and the MAAR . [ 56 ] In my view, Mr. Dowling chose to ignore the limits of his licence and to sell to a person whom he knew did not have an ATP. [ 57 ] Sfetkopoulos v. Canada (Attorney General) , 2008 FC 33 , aff’d 2008 FCA 328 , leave to appeal to SCC refused, 32944 (April 23, 2009), which declared invalid the MMAR which prohibited the DPPL holder from growing for more that one grower is not of assistance to Mr. Dowling since there is no evidence he was selling or wanting to sell to any ATP holder other than Ms. D.

The evidence is to the contrary, in a sense. When he shared a joint with others whether they were ATP holders was a fact not to be disclosed. [ 58 ] R. v. Beren and Swallow , 2009 BCSC 429 , sales to non-ATP holders were deemed criminal as has been Mr. Dowling’s sale to Mr. R. [ 59 ] R. v. Mernagh , 2011 ONSC 2121 , dealt with the practical impossibility of finding a medical doctor to comply with the regulations. Twenty-one witnesses attested to their journeys through the medical system, treatment with ineffective and addictive opioids.

In Mernagh , sections of the CDSA were declared unconstitutional but Mernagh is stayed pending appeal.

[ 60 ] In Mr. Dowling’s case Ms. D received the permission of a medical doctor. Mr. R took his doctor’s advice. Mr. Dowling’s own use is before the court but he lacks standing to challenge s. 4 of the CDSA. If he had standing he has led no evidence of his own journey through the medical system. [ 61 ] R. v. Smith, 2012 BCSC 544 , declared unconstitutional the restriction to dried marihuana in the MMAR. Mr. Dowling has been found not guilty of production of cannabis resin.

Further, he led no evidence to demonstrate how the restriction to dried marihuana compromised his ability to serve his client. [ 62 ] There being a failure of proof that the law impugned unjustly limits Mr. Dowling’s liberty interest no breach of the Charter can be found. Conclusion [ 63 ] Mr. Dowling has failed to prove a breach of S. 7 of the Charter . He is convicted on counts 1, 3 and 5. He is acquitted on counts 2 and 4. Heard on the 10 th day of May, 2012. Dated at the City of Edmonton, Alberta this 16 th day of May, 2012. L.J. Smith J.C.Q.B.A.

Appearances: Adam Halliday & Christopher Samuel, Crown Prosecutor, Public Prosecution Service of Canada

Philip G. Lister, Q.C. For David Allyn Dowling