R. v. Sephton Date:, 2013 BCPC 118

Citation: R. v. Sephton Date: 20130412 2013 BCPC 0118 File No: 189174-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TROY PATRICK JAMES SEPHTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Whitlam Counsel for the Defendant: R.D. Ballantyne Place of Hearing: Surrey , B.C. Dates of Hearing: March 7, 8, 14, 2013 Date of Judgment: April 12, 2013 [ 1 ] THE COURT : Troy Patrick James Sephton is before the court for his trial on Information 189174-2-C. He is charged, first,

that on March 26th of 2011, at Surrey, British Columbia, he did unlawfully produce cannabis marihuana, contrary to s. 7(1) of theControlled Drugs and Substances Act, and, second, in the same circumstances that he had possession of that substance for the purpose oftrafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] At trial, the Crown called four police witnesses, including an expert witness in the production and sale of cannabis marihuanaand one civilian witness. The accused did not call evidence.

Following submissions, I reserved this matter to today's date for thisdecision. [3] The accused, Mr. Sephton, rented a storage unit in January of 2011. On March 26th of 2011, police attended and entered thestorage unit following a report of water leaking into other units from the accused's unit. They discovered a marihuana grow operationinside two trailers parked inside the storage unit.

The defence says the circumstantial case presented by the Crown does not establishbeyond a reasonable doubt that the accused had any role to play in the grow operation and that his possession of the marihuana ascontemplated in s. 4(3) of the Criminal Code has not been proven. [4] In respect to the offence of production, it is not necessary that the Crown prove possession of the crop by the accused. Possession is not an essential ingredient of that offence (R. v. Powell (1983), (BC CA), 9 CCC (3d) 442 (BCCA).

However, proof of possession would strengthen the Crown's case in respect of that count. [5] The marihuana was not found in the personal possession of the accused. The Crown presents a circumstantial case in respect ofpossession of the marihuana for the purpose of trafficking. It relies on the definition of constructive possession, as set out in s. 4(3)(a)(ii), that is, that the accused had it in a place whether or not that place belonged to him or was occupied by him for the use or benefit ofhimself or any other person.

The elements of constructive possession, which the Crown must establish, are that the accused knew of thecharacter of the substance, that he knew the marihuana was kept in the trailers inside the storage unit he rented and that he exercised anelement of control over the substance for his or another person's use or benefit (R. v. Morelli, [2012]1 SCR 253 SCC). The partiesagreed that possession, if proven, was for the purpose of trafficking. [6] In the circumstances which I will outline here the test to be applied is set out by the Supreme Court of Canada in a case calledR. v. Cooper in 1977.

At page 16, the court stated: It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must besatisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. (R. v. Cooper, (SCC), [1977] SCJ no. 81 at p. 16) [7] In addressing this test, I have in mind the following guidance which was provided by the British Columbia Court of Appeal ina case called R. v.

To in 1992 at page 7 where the court stated: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can bereached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. (R. v. To, (BC CA), [1992] BCJ 1700 (BCCA) at p. 7) [8] The circumstances in this case are the following. Peter Faliszewski owns a commercial property at 17942 55th Avenue,Surrey, British Columbia.

There are 19 rental units in that commercial development which he rents to the public. Each has a separateentrance, washroom and electrical service. The general layout can be seen in photographs on the first two pages of the book ofphotographs marked Exhibit 2 on the trial. In early October of 2010, a person identifying himself as Justin Walsh responded to a rentalnotice for Unit 5 which Mr. Faliszewski had placed on Craigslist. He said Troy would come to see the unit. On October 7 of 2010, Mr.Faliszewski met with the accused, Troy Sephton, and his father, Wayne Sephton, to view Unit 5.

Troy Sephton told him that he wantedthe unit to store two trailers and that he was in the air conditioning business. The accused chose not to rent Unit 5 because it was toosmall for the trailers. On October 12th, Mr. Faliszewski called the accused to tell him that Unit 6, which was larger, had becomeavailable. He did not receive a response. [9] At the beginning of January of 2011, Justin Walsh was in touch again with Mr. Faliszewski and an arrangement was made forthe accused to look at Unit 6, which he and his father, Wayne, did during the second week of January. The accused indicated the unitwas satisfactory.

Mr. Faliszewski emailed him a draft lease. On January 15 of 2011, the accused gave Mr. Faliszewski one-half monthof rent and a cheque for the damage deposit. On January 29 of 2011, Mr. Faliszewski met with the accused at the unit. He was with hisfather, Wayne, and a person named Todd. They were moving in to the unit. [10] On January 31st of 2011, Mr. Faliszewski again attended Unit 6. He received six post-dated rent cheques from the accusedwho showed him the inside of the unit with two trailers parked therein. He noted movie props inside the main door in front of thetrailers.

He informed the accused that he would require access to the furnace for maintenance at the rear of the unit. During this visit,on two occasions, Mr. Faliszewski moved towards the rear of the trailers but felt that he was being nudged away by Wayne Sephton. Todd was also present. At some point during this January 31st visit, Mr. Faliszewski saw another unknown person enter the unit using akey. [11] On March 4th of 2011, he met the accused and they signed a one-year lease, covering the period commencing February 1st of2011 to January 31st of 2012.

He received a key from the accused, which would unlock this unit, the lock apparently having beenchanged, as Mr. Faliszewski had suggested. The lease is between Mr. Faliszewski and the accused as the lessee. The accused isresponsible for utilities, including electricity. Mr. Faliszewski is allowed to enter and view the premises during normal business hours. Prior consent to sublet is required.

[ 12 ] On March 5th of 2011, they met at the unit for a prearranged inspection. Mr. Faliszewski observed the trailers in place and some movie props inside the unit. [ 13 ] On March 26th of 2011, police responded to a report of water leaking from Unit 6 into other units. Other tenants had discovered water leaking and apparently unable to reach Mr. Faliszewski had broken a window and entered Unit 6 to try to control the water. Cst. Ostrum and Cpl. Labouche were the first officers on the scene and they entered the unit at 11:40 a.m.

The unit can be entered through a locked doorway leading from the street into what appears to be an outer office or reception space. This door and office are visible in photographs A and B of Exhibit 2, as they were seen by the officers on entering. The officers forced this door open. They found water present on the floor. A Fortis gas bill in an envelope addressed to the accused at the unit address lay on the floor below the door and the mail slot. They proceeded through this room into a large bay area of the unit. Water covered the floor. Two large black trailers were parked in the bay.

They are partially visible in photographs on pages 8, 11, 49 and 50. Hoses ran from the water source at the back of the unit under a light wall partition and into the trailers and to the drainage system. Electrical cabling ran from the electrical panel of the unit into the two trailers. Photographs 29, 36, 39 and 40 show numerous electrical cables and wires rigged in to the panel. These ran across the wet floor under the partition wall and into the trailers. A work bench ran along one wall of the unit and can be seen on page 12 of Exhibit 2. On the work bench is a video monitor. Cpl.

Labouche observed the monitor was turned on and showed the live movements of police officers in and about the unit. It could have been part of a camera surveillance system but this cannot be confirmed because none of the equipment appears to have been examined and it was not seized by police. It is, therefore, not possible to say whether a record of coming and going to the unit was stored in the equipment. [ 14 ] Once the officers determined that no one was present or requiring assistance, they left the unit and secured the site. Utility representatives attended and turned off the power.

A search warrant was obtained and executed at 7:18 p.m. that day. Both trailers had locks, which were removed by the police. The two trailers contained a two-stage marihuana grow operation totalling 257 plants divided equally between the trailers. The trailers were set up with water-pumping equipment which required manual watering and nourishing of the plants. [ 15 ] Sgt. Shawne Stovern was qualified as an expert in the production and trafficking of marihuana. He reviewed the photographs in Exhibit 2.

He said that the plants appeared to be at the six-to-eight-week stage of growth requiring about three more weeks to harvest. He said the two trailers were modified to provide the type of controlled growing environment required for an indoor operation. He noted the presence of nutrients and fertilizers inside the trailers, as depicted in the photographs. He said that the power and water and equipment would require someone attending every two to three days to tend to the plants. He said the plants were in a healthy state and would yield potentially between $27,000 and $38,000.

He said this was a low to moderately sophisticated operation. Officers did not detect the smell of marihuana around the trailers until the doors to the trailers were opened. [ 16 ] Cst. Ostrum said that he determined one of the two trailers, he cannot say which, was registered to Justin Walsh. He said the other trailer was not registered. Registration documents were not filed. No additional information respecting Justin Walsh was provided. Cst. Ostrum was given some information about vehicles which had been seen at the unit from time to time by the landlord.

He was referred to a person named Todd Shoer and a B.C. licence plate number by the landlord, Mr. Faliszewski. The officer said he had no contact with Todd Shoer and cannot say if he tried to contact him or not. He was given another plate number for a pickup, CR 8918. He says it is likely that he followed up on this plate but he has no record of this. [ 17 ] The officers and Mr. Faliszewski referred to movie props or costumes, which were present in the unit. No real detail is provided in the evidence beyond these very general references.

What might be the items referred to are visible in photographs at the top of pages 9 and 11 of Exhibit 2. [ 18 ] Mr. Faliszewski was in Victoria from March 25th to the 28th, 2011. He was not reached about the situation at Unit 6 until March 28th when he picked up a message from another tenant about the events. He left a message for the accused and then met him at the unit on March 29th. He said the accused was in the process of cleaning up the unit. The accused was upset and very apologetic.

He said he had rented his trailers to movie people to store audio and video equipment but they had lied to him and used them for a marihuana grow operation. [ 19 ] On March 31st, Mr. Faliszewski and the accused spoke briefly on the telephone. On March 5th, when Mr. Faliszewski conducted an inspection of the unit, he had not seen the wiring and hoses running into the trailers that the police found on March 26th and he did not smell marihuana. During their telephone conversation on March 31st, Mr.

Faliszewski said to the accused words to the effect that this was a very impressive set up and there was no smell at all. The accused replied with the words, "Uh, thanks." The Crown argues that I should view this as an admission, perhaps inadvertent, by the accused of knowledge and involvement in the grow operation. The defence says the comment should be given little weight, that it could as easily have been sarcastic or intended as an attempt at humour, particularly considering Mr.

Faliszewski was not in the accused's presence when the comment was made and so any facial expression or gesture accompanying the comment cannot be considered in evaluating those words as they were spoken. [ 20 ] The evidence establishes that the accused paid to repair and reinstate the electrical service to the unit. He paid $1,400 to the City to address a hygienist's assessment to determine if mould was present as a result of the grow operation and to clean up for the City inspector. Mr. Faliszewski, as the owner of the property, was assessed $12,806 in fees or penalties by the City. The accused gave Mr.

Faliszewski a cheque to cover those assessments. However, Mr. Faliszewski succeeded in negotiating with the City to dispense entirely with the fees and penalties. He kept the funds provided by the accused without informing him of this. He said that he felt justified in doing so bearing in mind he lost rental income until another tenant was found for the unit later in the year. The Crown says I should treat as incriminating the accused's diligent efforts to clean up the unit and assume responsibility for these various costs. The Crown says these actions reflect a continuing exercise of control over the unit.

A person who was not responsible would not act in this way, is the Crown's theory. The defence says the real point here is that Mr. Faliszewski's conduct in failing to return the accused's money after his successful negotiation with the City reflects poorly on his credibility. [ 21 ] The Crown says all the evidence supports an inference that the accused had the required knowledge of the grow operation and control of the grow operation by virtue of his control over Unit 6 and that on the evidence before the court, it is the only inference that can reasonably be drawn.

The Crown points to the fact the accused is the main tenant on the lease, that he had the locks changed and

provided the key to Mr. Faliszewski, that he was responsible for utilities and that indeed a Fortis gas bill in his name for the address waspresent in the suite when entered by police. It was the accused who initially met with Mr. Faliszewski to look at Unit 5 and talk ofneeding space to store two trailers, suggesting a possessory interest in the trailers; that he again met with Mr. Faliszewski to look at Unitnumber 6 in early January of 2011 and decided that it was adequate for the trailers.

He provided the first partial rent cheque for January2011 and the damage deposit and he provided the first six of the 12 post-dated rent cheques; others provided at a later time by his father. He was there January 29 when Mr. Faliszewski attended and on January 31st when Mr. Faliszewski viewed the unit and saw the trailersinside. The accused met with Mr. Faliszewski on March 4th and signed the lease providing a key and on March 5th during an inspectionvisit.

He assumed responsibility for clean-up costs arising from the removal of the grow operation and other expenses. [22] The Crown says he essentially acknowledged his role when he said, "Uh, thanks," to Mr. Faliszewski's comment over the phoneabout the sealed nature of the grow operation. Other evidence supportive of the Crown's argument include the presence of wiring andplumbing running from the unit's services directly into each trailer and the need for regular attendance to service the growing plants. [23] The Crown says evidence of access to the unit by others does not amount to a defence.

Others may also have been involved. The accused's statements to Mr. Faliszewski that he was deceived should be given no weight, the Crown says, because they are untestedon cross-examination. [24] The defence places great weight on evidence that others had access to the unit, on the Crown's evidence, and were seen comingand going. Justin Walsh made initial contact respecting the rental inquiry and was the registered owner of one of the trailers. Movieprops were present, consistent with Mr.

Sephton's statement to the landlord, corroborating the defence, says his understanding aboutwhat the renters of the trailers told him they intended and supportive of the defence argument that he was deceived and entirely unawareof the grow operation inside the trailer. Consistent with this, no odour was detected when the trailers were sealed. The defence says hisactions in cleaning up and paying various costs arising from the grow operation is consistent with his distress over the unintended impacton the landlord and a sense that the responsible thing to do was not to leave Mr.

Faliszewski stuck with these costs. [25] Mr. Ballantyne for the accused pointed out the investigators failed to follow up and to document important lines of inquiry,particularly respecting others apparently having access to the unit. I take his point to be that such inquiries might well have focused theprosecution elsewhere than on Mr. Sephton.

He says the Crown's case amounts to suspicion but it does not amount to proof that the onlyreasonable inference to be drawn from the proven facts is the guilt of the accused. [26] I choose to give no weight one way or the other to the accused's response, "Uh, thanks," to Mr. Faliszewski's reference to theabsence of any smell from the trailers and that it was an impressive setup. It appears on its face to be inculpatory but it is, in the context,too equivocal. It could as easily have been spoken off the cuff unguarded and intended to reflect humour or sarcasm. Similarly, I givelittle weight to Mr.

Sephton's conduct in clean-up and paying various costs. That is too equivocal to assess one way or the other. [27] Mr. Sephton is the tenant of that unit. He signed the lease, he provided rental and damage deposit cheques; he told Mr.Faliszewski his purpose was to store trailers there. He provided a key to the landlord. He is the person with whom the landlord dealt innegotiating the lease and in facilitating access for inspection.

Although other persons appeared to come and go from the unit, and othernames surfaced, for example, Justin Walsh, their apparent involvement at the unit does not, on the evidence before me, diminish Mr.Sephton's control over that unit. [28] In R. v.

Abdel-Malek, [1997] BCJ 999 (BCCA) a decision of 1997, the Court of Appeal in British Columbia stated thefollowing at paragraph 10: There was evidence to support the trial judge's finding that the appellant was one of the two tenants of a house in which a significantmarijuana grow operation was taking place, that he signed the lease and made at least one rental payment. There was evidence that hehad accepted responsibility for the hydro supply to the house. This is sufficient evidence to support an inference that he had the requisitemeasure of control over the marijuana grow operation, if he knew of it.

"Control for the purpose of constructive possession does notrequire that the accused did in fact exercise control over the object in question." (R. v. Savory, (ON CA), [1996] OJno. 3811, Oct. 30, 1996 (Ont. CA) As the trial judge recognized, it is enough that the appellant had the right to grant or withhold his consent to the grow operation. As theco-tenant he had the right to forbid illegal behaviour in premises for which he was responsible. [29] There is no specific evidence that Mr. Sephton attended the unit after March the 5th when he met with Mr. Faliszewski there atthat time for an inspection.

However, there is no reasonable basis on which to infer that his control over the unit as tenant who wasaware of and consenting to the presence of the trailers in the unit diminished after March 5th. [30] In these circumstances, Mr. Sephton had unfettered access to the unit. Anyone would have been in a position at some pointthereafter to have seen the complex of electrical cabling and water hoses travelling from connections in the unit to the inside of thetrailers.

It is remarkable to contemplate that the grow operators would risk detection by an unwitting occupier of this storage unit byputting that operation inside the occupier or his acquaintances' trailers and running the power and water connections present in this case. This grow operation required regular attendance to water and nourish the plants. That, too, places a covert operation at risk, if the tenantof the unit is free to come and go there. This is not a very large operation by some standards but it is large and valuable enough that onewould reasonably expect the operator to take reasonable steps to protect it.

This was not a grow operation for which reasonable stepswere taken by its operators to keep it hidden from Mr. Sephton if he were the unwitting tenant of Unit 6. [31] Mr. Sephton told Mr. Faliszewski that he was deceived by people who said they wanted to store movie props or audio-videoequipment. I place little weight on this evidence. It is questionable whether such statements were admissible in the manner in whichthey came in to evidence but even assuming they are admissible, they must carry little weight. They are entirely untested by cross-

examination. There appear to have been some movie props present in the unit when police attended. Likely, there is an explanation for that but I am not prepared to associate that explanation to a deception of Mr. Sephton bearing in mind the little weight I am prepared to give his exculpatory statement to Mr. Faliszewski. Those statements do not raise a reasonable doubt. [ 32 ] I find the following statement from the Court of Appeal in R. v. To , at page 7 in that decision, helpful here. In that case, the accused gave evidence that he was unaware drugs were in a bag that he handled. That evidence was rejected.

The court stated the following: Thus it seems to me, with respect, that it is legitimate to infer knowledge from mere physical possession in proper circumstances which inference will be displaced if an explanation is offered which raises a reasonable doubt or if, as in Hess , other inferences consistent with innocence may be drawn from all the proven circumstances. It is this rational process which distinguishes inference from speculation or conjecture.

At the end of the case, of course, the Crown must prove the guilt of the accused beyond a reasonable doubt, but once that was done, on the circumstances of this case, the burden of adducing an explanation that raises a reasonable doubt, or of extracting reasonable doubt from the evidence, rested upon the accused. [ 33 ] The same considerations apply here. The evidence establishes no other reasonable inference but that the accused, Mr.

Sephton, knew of the presence of the marihuana grow operation inside the trailers placed in the unit which he rented and he had the requisite control perhaps with the involvement of others. The Crown's case amounts to proof beyond a reasonable doubt in respect to both counts. No other inference could reasonably be drawn but that he had a role in the production of marihuana. Further, the elements of possession have been proven. Parties are agreed it is for the purpose of trafficking. This complex of circumstances could only be overcome with evidence raising a reasonable doubt.

None has been provided, nor is it present in the Crown's case. [ 34 ] Mr. Sephton, if you could stand, please. I find you guilty in respect of both counts. (REASONS FOR JUDGMENT CONCLUDED)