R. v. Zheng, 2015 ONCJ 30

Citation: R. v. Zheng , 2015 ONCJ 30 ONTARIO COURT OF JUSTICE Old City Hall – Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — XUE TAN ZHENG ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) S. Virk For the Crown K. Schofield For the Defendant Heard: March 31, April 1-3, 8, June 19, November 7 and 18, 2014 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] There was a break-in at a marihuana “grow op” at 81 Mack Avenue in Toronto in the early hours of March 6, 2012. The defendant, Xue Tan Zheng, was inside the facility at the time. He ran outside, called 911, waited for the police and reported the incident.

He was later charged with production of marihuana found inside the grow op and with possession of marihuana for the purpose of trafficking. No one else was charged with production-related offences as a result of the police investigation. [ 2 ] The cultivation of some of the marijuana plants found at 81 Mack was authorized by Health Canada pursuant to licences issued under the MMAR – the Marihuana Medical Access Regulations , SOR/2001-227. The defendant testified that he was a mere employee at the site and that his responsibilities were limited to security monitoring and cleaning.

He was not authorized to possess marihuana and his name does not appear on any of the production licenses referable to the Mack address. Those licences authorized the production of far fewer marijuana plants than were found at the grow op. The police seized the unauthorized excess plants. [ 3 ] Zheng in effect concedes that he had sufficient knowledge and control of the marihuana grown at 81 Mack to render him a party to its production and, given the vast amount involved, its possession the purpose of trafficking.

His defence, in essence, is that he believed the production of all of the plants at 81 Mack was authorized by valid licenses and that he was therefore acting within the law in working at the facility. To the degree that his belief was mistaken, he says, it was an honest mistake of fact rather than law. As a result, he argues, he is not criminally liable.

[ 4 ] Two police officers who attended the grow op on March 6, 2012 testified, as did the defendant. An Agreed Statement of Fact simplified the narrative exposition. A tape recording of the defendant’s 911 call was also received into evidence, as were several Health Canada production licences and some related documentation. A video recording of the defendant’s police interrogation on the evening of the burglary was also admitted. A video recording of the grow op and photos and certain documents taken during the execution of a search warrant at 81 Mack complete the evidentiary record.

No constitutional challenge is here taken to the governing legal regime. As in all criminal cases, the ultimate legal burden rests on the Crown to prove beyond reasonable doubt each essential element of the two offences charged. B. EVIDENCE (

a) The 911 Call [ 5 ] The defendant called 911 to report a break-in at 81 Mack Avenue at 2:46am on March 6, 2012. He explained that the address was a legal marijuana factory and that he was working inside when thieves entered. He had seen them in the grow room minutes earlier. They had a big white truck. He told the operator his name (“Kevin Zheng”) and date of birth. He was advised to flag down the police when they arrived. He did. (

b) The Police Attendance at 81 Mack [ 6 ] The first police officer, Sgt. (then PC) Chris French, reached 81 Mack a little before 3am. The defendant advised French that the thieves were “still in there” and pointed out the location of their truck – backed up to a staircase in the grow op’s laneway. French could see about eight persons loading bags into the truck. He and a second officer pursued the burglars, ultimately arresting three men. French then returned to 81 Mack. The defendant, who had remained on the scene, identified himself by way of his driver’s licence and provided his cell phone number.

In answers (conceded voluntary) to the officer’s questions, the defendant explained that he had been watering plants when he first heard the sound of glass smashing and saw strangers coming through a window. French confirmed that there was a CCTV system at the grow op, and the defendant may also have said something about it during their exchange. [ 7 ] The truck believed to belong to the break-in suspects was found to contain approximately 300 plants, along with 314.34 grams of dry marijuana. (

c) The Police Search of 81 Mack [ 8 ] The police obtained and executed a search warrant at 81 Mack later the same day. The grow op was a unit in an industrial complex. It was leased to a numbered company. The defendant was neither the owner nor lessor of the unit. There is also no evidence connecting him in any proprietary or official manner to the numbered company. [ 9 ] A total of 1,507 marijuana plants were located in three rooms on the premises. One contained 831 plants, about evenly divided between clones and flowering plants. The second had 336 four-foot high flowering plants.

There were 30 healthy plants in the third room along with 310 empty pots. (The close coincidence between the number of empty pots and the plants found in the truck led the police to infer that this third room had been the initial object of the burglars’ attention.) The police did not seize the remaining 30 plants in the last room as they viewed their number as authorized by valid Health Canada licenses. [ 10 ] Another, smaller room, described as a sleeping area, contained two beds, a desk or table and a small fridge.

Several documents seized in this room bore the defendant’s name, including a current credit card statement, a current TD Bank statement and a current Rogers cell phone bill. A CCTV monitor and recorder were seized from the desk in the room. [ 11 ] The total “wet weight” of the plants seized at 81 Mack was 181.43 kilograms. Fully grown and dried, the marijuana plants at the grow op were estimated to yield 105,490 kilograms of marijuana (calculated at 70 grams per plant).

The commercial value of this production was estimated to be between $527,450 and $632,940 (if sold at the kilogram level) and over two million dollars if sold for $20 a gram. In addition, some 314.34 grams of dried marihuana were seized from 81 Mack. [ 12 ] Four Health Canada-issued medical marihuana production licences (each styled a “Designated Person Production Licence”) were located on the premises. Each authorized licence-specific production at 81 Mack, the named “production site” in all four: 1. One named Bing Quan Chen as the “holder of license” and Marlene Kennedy as the “authorized person”.

The licence authorized a production maximum of 15 plants at the site and a storage maximum of 675 grams of dried marihuana. The licence expired on January 12, 2012, approximately two months before the break-in at 81 Mack. 2. A second licence named Dana Perry Clark as the “holder’ and Chad Andrew Cooke as the “authorized person”. Production of up to 83 plants and maximum storage of 3735 grams of dried marihuana were authorized. The licence expired on February 17, 2012, about three weeks before the break-in. 3. The “holder” of the third production license was again Dana Perry Clark.

The “authorized person” was Craig Anthony Cain. The production limits under the licence were 15 plants and 675 grams of dried product. The licence did not expire until April 28, 2012, some seven weeks after the defendant summoned the police to 81 Mack. 4. Maxwell Larkford Reid was the “holder” of the final licence and Ris Stone was the “authorized person”. Again, the licence authorized a maximum of 15 plants and 675 grams of dried marihuana. This licence did not expire until May 5, 2012, some two months after the break and enter.

Despite police inquiries of Health Canada, there was no evidence that the first two of the above-listed licences had been renewed or extended. Accordingly, production of only 30 marihuana plants was authorized at 81 Mack at the time of break-in on March 6, 2012. (

d) Implementation and Enforcement of the MMAR

[13] Although not qualified as an expert, DC Brandon Karstoff was a 14-year veteran of the Toronto Police Service drug squad andparticularly familiar with the statutory regime governing medical marihuana production. No objection was taken to his evidencerespecting the implementation and enforcement of that regime. [14] A “commercial system” has now replaced the “designated grow” system in place on March 6, 2012.

Under the designatedgrow regime that then obtained (the MMAR), the government, through Health Canada, authorized persons approved to use marihuanafor medical purposes to grow their own plants or, alternatively, authorized others – designated growers – to grow marihuana for up tofour licensed medical consumers. Pooling of production at a site specified in the licences, either by way of individual or designatedcultivation, was quite common.

There was no limit on the number of plants that could be produced at a single site, so long as the totalproduction did not exceed the cumulative authorization afforded the various licensees engaged in the shared use of the same namedfacility. [15] There was more than a little uncertainty respecting the limits of assistance a designated grower could lawfully obtain fromothers. Designated growers, in Karstoff’s view, were not obliged to be onsite at all times. They could contract out necessary, peripheralservices such as responsibility for security and maintenance.

They could not, however, assign or delegate core productionresponsibilities. Someone hired as a “gardener”, for example, would have to be named on the licence to be under its protectiveumbrella. Karstoff’s

interpretation, he acknowledged, was difficult to reconcile with both the realities of operating a licensed productionfacility and regulations that appeared to permit only one “holder” to be named on a designated-person production licence: MarihuanaMedical Access Regulations, s. 37. I return to a fuller discussion of the MMAR in due course. (

e) The Defendant’s Police Interview [16] The defendant voluntarily accompanied the police to 41 Division following their initial investigation. He was interviewed onvideotape about the break and enter incident and the grow op for over an hour, from about 5:20 to 6:27am on March 6, 2012. At the5:48am point, the defendant was cautioned, somewhat indirectly, that he was being investigated in relation to the marijuana found at 81Mack.

He was released without charge at the conclusion of the interview. [17] Crown counsel did not seek to rely on the police interview of the defendant and left to me the question of its reception intoevidence, as urged by the defence. Applying R. v. Edgar (2010), 2010 ONCA 529 , 260 C.C.C. (3d) 1 (Ont. C.A.); leave refd.[2010] SCCA No. 466, I admitted the DVD of the defendant’s police interrogation. As summarized in R. v. Badhwar (2011), 2011ONCA 266 , 270 C.C.C. (3d) 129 (Ont.

C.A.), at para. 17, Edgar stands for the proposition that “it is open to a trial judge to admit an accused’s spontaneous out-of-court statements made uponarrest or when first confronted with an accusation as an exception to the general rule excluding prior consistent statements as evidence ofthe reaction of the accused to the accusation and as proof of consistency, provided the accused takes the stand and exposes himself orherself to cross-examination”.

The statement does not go in for its truth (unless it is otherwise admissible as original evidence) but “isevidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have abearing on guilt or innocence”. See also, R. v. Johnson (2010), 2010 ONCA 646 , 262 C.C.C. (3d) 404 (Ont. C.A.); R. v. K.T., 2013 ONCA 257; R. v.Kailayapillai, 2013 ONCA 248; R. v. Liard, 2013 ONSC 5457; R. v. Oram, 2013 ONSC 5742; and R. v.

Ye, 2013 ONSC 7251. [18] The police interview proceeds as follows: After the defendant consents to being videotaped, the police advise him that they areinvestigating a break and enter at 81 Mack and that he may be a witness at a trial. They also caution the defendant respecting hispotential criminal liability for providing a false statement. The defendant’s cellphone rings during this exchange. He says “sure” whentold to turn off the phone as he retrieves it from his pocket. He briefly looks at the phone before returning it to his pocket, saying, “It’san alarm clock. [Indecipherable …] spray the water now”.

The defendant then completes the formal trappings of a KGB statement. [19] The defendant started work at 5pm the night before. The grow rooms were too warm and he adjusted the temperature. Askedwhat happened, the defendant explains that he was walking around the “big room” when he heard cracking and smashing. It was about2am. He saw something fall and a couple of intruders. He left and called 911 about eight minutes after first hearing the noise. At therequest of the police, the defendant draws a sketch of the area.

He also describes what he believed to be the burglars’ vehicles and theiruse of a ladder to enter the grow op. [20] About 5:48am, the police inquire if the facility is a medical marihuana grow operation. The defendant affirms that it is, addingthat it’s “legal” and that he has seen “the papers” confirming its legality. One of the officers expresses some “suspicions” and, at5:49am, notifies the defendant of his right to counsel respecting his investigation of marihuana production offences at 81 Mack. Asked ifhe understands, the defendant replies that “CCMC” has its own lawyer, and “what I know I can tell you”.

The officer advises that thereis a “possibility of charges”. “Me?” asks the defendant. “Yes”, replies the officer; that, he explains, is why the defendant was affordedhis right to counsel. The defendant declines counsel. Formal cautions ensue, followed by the question, “What can you tell me about thefacility?” [21] The defendant narrates that he has only been working at the grow op for about a month, since late-January, and, later, that hehad only worked at the factory on five or six days. Although he hasn’t counted them, he estimates there are a couple of hundred plants atvarious stages of maturity.

CCMC, he says, “tells us what to do” since “they’re licensed”. The defendant had not cut plants, witnessed aharvest or weighed anything. His responsibility, he says, is looking for “bad guys” on the “camera” (presumably, the grow op’s CCTVsecurity monitor situated in the sleeping room). On request, the defendant describes, if vaguely, the physical appearance of a couple ofMandarin-speaking men who have slept over at 81 Mack, but says he does not know their names. “We don’t touch” inside, he says,because “if you touch you can do something bad together.

He acknowledges that an iPad found in the sleeping room is his, and he wantsto return to the facility to retrieve it along with the shoes, bag and PlayStation he also left there. [22] The defendant was hired by “Vincent”, a Cantonese-speaking man he met long ago. He describes Vincent as a slightly fatAsian of about 50 with a moustache and white hair. He does not have Vincent’s phone number with him. The defendant says the wageswere good, but he has not yet been paid. He was supposed to attend at the police station that week to obtain a police background check.

[ 23 ] If the police came, the defendant says he had been instructed to simply show them the licences at 81 Mack and “you’ll be fine”. The officer conducting the interview tells the defendant he “think[s] they lied to” him. The defendant looks surprised to hear he was lied to. He had been told the operation was legal and saw “police papers” there; that, he says, is why he worked there. The chief police interrogator says he too saw the papers and that he has other officers trying to determine if the grow op is legal.

The defendant offers to return the next day to further assist the police investigation if they have additional question. He “promises” he would not have called the police if he knew the facility was illegal.

Advised again that he could be charged, the defendant says this is “not fair”, the marihuana did not belong to him and, once again, that he would not have called the police if he thought the grow op was illegal. [ 24 ] Although not produced during the defendant’s police interview, one of the documents (arguably a “police paper”) found at 81 Mack was an invoice from the Toronto Police Service for “the recovery of administration and enforcement costs for city agencies in relation to marihuana grow operations”. (

f) The Defendant’s Testimonial Account [ 25 ] The defendant testified over the course of four days, chiefly by way of cross-examination. [ 26 ] The defendant immigrated to Canada in 2000. He was 27 at the time of trial and employed as a manager at a Japanese restaurant. From 2007 to 2012 he had worked at a branch of the “Mandarin” restaurant chain. The defendant testified with the aid of a Mandarin interpreter, characterizing his own command of English as “OK” where simple English was involved.

He could not, he said, read English well. [ 27 ] Vincent Tong was a customer at the Mandarin when the defendant first met him. They became “friends”, according to the defendant, and in late-January 2012 Vincent offered the defendant work at 81 Mack. Recent competition in the vicinity of the Mandarin and his desire for a more secure position led the defendant to accept the offer. The defendant understood that 81 Mack was a marihuana production facility. Vincent later showed him some licenses and other documents that convinced the defendant the grow op was “legal”.

These documents, described earlier, were among those seized in the sleeping room at 81 Mack. [ 28 ] The defendant understood that Vincent worked for CCMC, a company with offices on the Danforth in Toronto. Among other services, CCMC offered “MMAR licensing”. Vincent took the defendant there before he began work at 81 Mack. The defendant did not attend the grow op before his first day of work there. He understood his job involved conducting CCTV surveillance and cleaning up the washrooms and certain common areas. It was not his job, he said, to cultivate or otherwise tend to the marihuana plants.

The defendant had no prior training or experience in security. [ 29 ] Prior to the evening of March 5-6, 2012, the defendant only worked at 81 Mack on two occasions. He had no fixed

schedule and Vincent would assign him workdays by phone. The defendant had not signed any paperwork related to his employment nor had he been paid as of March 6 th . This, he explained, was common in the Chinese business world during periods of probationary employment. Based on his performance, the defendant expected to be paid about $3,000 a month by CCMC if he qualified for fulltime employment. He had been earning about $2,800 a month at the Mandarin. [ 30 ] The defendant’s first day on the job was in late-January 2012, likely January 28 th .

He met Vincent at the door to 81 Mack and they entered through a key hidden in the grass. Vincent showed the defendant the Health Canada licences and related documents that were hanging from a nail on a wall in the sleeping room. This was the first time the defendant had seen any production licences. Vincent spent about an hour introducing the defendant to the premises and his duties, chiefly cleaning and watching the CCTV security monitor.

He instructed the defendant to use his own discretion if he observed a “problem” while watching the security feed but to call the police if he suspected someone was doing “bad things”. The defendant did not know who performed the cleaning and security functions at 81 Mack when he was not present. [ 31 ] The defendant’s second day on the job was at the very end of February or beginning of March. He worked from about 5pm until midnight or 1am.

Vincent arrived shortly after 5pm and was soon joined by Dana Clark and Bing Quan Chen, whose names the defendant learned through Vincent a day or two after the March 6 th break-in. All three left the defendant alone at the grow op after an hour or so. A fourth man, Michael Li, turned up around 10pm. Li invited the defendant to the grow rooms and they talked while he, Li, watered the plants. At trial, the defendant could not recall the subject of their conversation; it was a long time ago and his memory of their exchange had washed away. Li and the defendant left 81 Mack after midnight.

The defendant told Vincent that because of other obligations he would not be able to return to work at the grow op until March 5 th . [ 32 ] The defendant began work at 81 Mack at about 5pm on March 5 th . He used the key hidden in the grass to enter the premises and then set about watching the CCTV feed on the monitor and cleaning his assigned areas. He expected Li to show up, but he never appeared. The grow op areas were hot and the plants that Li would ordinarily irrigate were very dry; many appeared to be dead. The defendant lowered the temperature on the thermostat.

Having watched Li in the past, the defendant also took on the task of spraying or “misting” the plants in one of the rooms with a fine shower. He had not been trained or instructed to water the plants and this was the only occasion he had done so. He agreed that spraying the plants and regulating the factory temperature were not part of his responsibilities, but he had undertaken them in Li’s absence.

The defendant denied removing dead plants from their pots, but agreed he did remove the root systems of plants that had already been pulled out of their pots and, as well, cleaned up and disposed of dead plants that someone else had removed from their pots and left on the floor. [ 33 ] The defendant heard a cracking sound while spraying on March 6 th . On investigation he saw intruders breaking the windows and entering the premises. He left 81 Mack, walked to a nearby intersection and called 911 on his cell. He would not have done so if he thought the facility was not legal.

He could readily, he said, have simply walked away from the situation. The defendant was still on the phone when the police arrived. He waived them down, pointed out the break-in suspects, and followed the police on foot as they drove towards their truck. He told the police what had occurred and waited to accompany them to the police station to assist their investigation. He had no concerns about the police entering the grow op as it was “licensed”. He knew his interview at the police station was being videotaped and adopted the truth of his March 6 th statement during his examination-in-chief.

[ 34 ] The defendant’s cell phone rang at one point during his video interview. As earlier noted, the defendant, on picking it up, says “Alarm clock” and words to the effect that it is time to spray the water. Pressed in cross-examination, the defendant explained that the ring was a call from his wife and not an alarm. The defendant did not want to risk frightening his wife by having to explain his presence with the police if an officer instructed him to answer a phone.

Accordingly, as he had already told the police that he had sprayed inside the grow areas he felt the safest course was to attribute the ring to an alarm. [ 35 ] The defendant’s evidence as to when he had come to know Vincent’s last name is somewhat fluid. In examination-in-chief, he testified that he knew the last name – Tong – at the time of his police interview, but only learned Vincent’s phone number after March 6 th . The defendant’s cell phone displayed “unknown” every time Vincent had called him.

In cross-examination he testified that he was “not sure” if he knew Vincent’s last name when interviewed by the police and, later, that he did not know Vincent’s last name at that time; had he, he said, he would have told the police during his videotaped interview. The defendant then expressed confusion, explaining that he had visited Vincent at CCMC very soon after the interview and likely learned his last name on that occasion; this, in effect, was why he had mistakenly testified in direct examination to knowing Vincent’s last name at the time of his police interview.

The defendant insisted he had answered all the police questions. Had he had any reason to conceal anything from the police he would have remained silent. [ 36 ] Although also less than crystal clear, it appears that the defendant did not learn Michael Li’s first name until sometime after March 6 th when he asked Vincent for his name in the hope that Li might agree to be a defence witness. Until then he knew him only as Xiao Li, “Xiao” being an honorific or title.

During his interview, the defendant told the police about and described the man he now knows to be Michael Li, but he did not provide Li’s name or those of any other workers at the marihuana factory. He and Li “never touched”, the defendant told the police, by which, he explained in his testimony, he meant that they never “dealt directly”. The defendant was concerned that such communication could lead to misunderstandings – a belief that he and Li “do something bad together” – if Vincent or CCMC thought that he and Li had some direct dealings.

In the end, the defendant agreed that he at least knew Li’s last name when the police interviewed him. He did not know why he did not provide it to his interrogators. [ 37 ] Although uncertain, the defendant believed he had obtained the forms required to complete a criminal background check before the break-in. He had, in any event, intended to complete this process as Vincent had advised him that CCMC required this formality. [ 38 ] The defendant had been living at his parents, along with his wife and their child, since February of 2012.

On one occasion, following a fight with his wife, he had slept over at 81 Mack. The defendant could not recall if it was the same night as he had worked at the factory but, in any event, he had entered by using the hidden key and had slept in one of the two beds in the sleeping room. Both beds, he testified, were present when he first began to work at 81 Mack. One was used by Li. The defendant denied installing the second. He agreed that, in the course of his videotaped interview, he had told the police that he “didn’t want to leave too early in the morning, so [he] put bed there”.

In cross-examination he explained that he was nervous and had some difficulty expressing himself during his exchange with police, and that he meant that he had used the bed by putting his things on it, not that he had put the bed in the room. The defendant had left his white Adidas bag containing personal items, including his iPad and commercial invoices and statements, in the sleeping room about a week before the break and enter. The police found these items in the room on March 6 th . [ 39 ] At the time, the defendant understood that it was “generally illegal” to grow marihuana.

He had, however, heard of legal marihuana production and had been shown licences at the factory that supported this belief with respect to the 81 Mack grow op. The defendant read these licences. He agreed they specified the number of plants that could be cultivated, but there were some words in the documents he did not understand. He did, however, appreciate that his name did not appear on any of the licences.

Shown each of the four production licences found on the premises, the defendant acknowledged that two of the four had expired by March 6, 2012 and that the total authorized production quota for 81 Mack as of that date was thirty plants. He acknowledged as well that each of the grow rooms at 81 Mack contained hundreds of plants. At least one of the licenses, the defendant pointed out, had not yet expired when he first worked at the grow op. Further, he had done some research and learned that production licences could be renewed.

In any event, the defendant testified that the plants “had nothing to do with” him as he was there solely to watch the CCTV security feed. He had only looked at the plants, he said, out of “curiosity”. He knew the facility was licensed; the number of plants it was authorized to produce was not his “issue”. He did not know the value of the marihuana at 81 Mack. C. ANALYSIS (

a) Introduction [ 40 ] The defence theory is that the defendant was mistaken as to the scope of the authorization to cultivate marihuana at 81 Mack, but that his mistake was one of fact rather than law and, as a result, absolved him of culpability for the offences with which he is charged.

The Crown theory, in contrast, is that the defendant was a principal in the operation of the marihuana grow op at 81 Mack, that he well understood the production limits authorized by the Health Canada licences granted the facility, that he hid behind a mask of naiveté while, in fact, fully appreciating that his participation in the enterprise was a violation of criminal law prohibitions on the possession and production of marihuana and an abuse of the regulatory exemption afforded for controlled production of the drug for medical purposes.

In the alternative, the Crown position is that the defendant, if honestly mistaken as to the lawfulness of the marihuana production at 81 Mack, suffered from a mistake of law rather than fact which, in the end, does not excuse him of criminal liability. (

b) The Regulatory Regime [ 41 ] The Controlled Drugs and Substances Act (CDSA) prohibits the possession and production (including cultivation and harvesting) of marihuana. The Marihuana Medical Access Regulations (hereafter, the Regulations or the MMAR) used to control government-licensed production and distribution of marihuana for medical purposes. They were introduced in 2001, pursuant to sub.-s. 55(1) of the CDSA. The MMAR was in place on March 6, 2012 when the defendant first came to the attention of the police respecting his involvement in the grow op at 81 Mack.

The MMAR were repealed on March 31, 2014 and effectively replaced by the Marihuana for Medical Purposes Regulations , SOR/2013-119. However, it is the provisions of the MMAR that are of concern respecting the

matter before me. [42] The MMAR is generally acknowledged as Parliament’s response to the Court of Appeal’s invalidation, in R. v. Parker (2000), (ON CA), 146 C.C.C. (3d) 193, of the possessory offence under the Controlled Drugs and Substances Act. TheMMAR have been subject to frequent Charter-based challenges since their inception (see, by way of example only, Hitzig v. Canada(2003), (ON CA), 177 C.C.C. (3d) 449; leave to appeal refd. [2004] S.C.C.A. No. 5; R. v. Mernagh, 2013 ONCA 67;R. v.

Smith, 2014 BCCA 322) and, prior to their repeal, were amended several time as a result of the Hitzig decision in particular. To beclear, and as noted earlier, no constitutional challenge is here taken to the governing Regulations or its enabling statute, the CDSA. [43] As said by Health Canada in a 2008 online “Fact Sheet” (as quoted in Conron, C., "Canada's Marihuana Medical AccessRegulations: Up In Smoke" (2012). University of Western Ontario - Electronic Thesis and Dissertation Repository.

Paper 938, at p. 104),the objectives of the MMAR are “to establish a framework to allow access to marihuana by individuals suffering from grave ordebilitating illnesses, where conventional treatments are inappropriate or are not providing adequate relief.” The vehicle for achievingthis objective are MMAR provisions that, inter alia, establish a complex procedure for individuals to apply for an “authorization topossess” (ATP) marihuana legally and for the issuance of licences to produce marihuana, either for personal use by the person issued anATP (known as a “Personal Use Production Licence” or PPL) or as a designated producer (known as “Designated-Person ProductionLicence”, or DPL) for a person issued an ATP.

Applicants for DPLs must also hold a personal ATP before they can be granted a licenceto produce marihuana. [44] Each such production licence, when issued, is subject to explicit terms and conditions governing the specified location of theproduction site, the mode of production (indoors or outdoors), the maximum number of plants that may be produced at the site under thelicence, the specified location for storage of harvested marihuana, the maximum quantity of dried marihuana that may be kept at thestorage site under the licence and the date upon which the licence expires. [45] As noted earlier, the four licences tendered in the instant case were all DPLs that authorized marihuana production at 81 Mack.

Two of the four licences had expired by March 6, 2012. The two that were still in effect authorized, in total, the production of only thirtymarihuana plants at the Mack address. The police seized more than 1,500 marihuana plants (including clones) from the Mack grow op onMarch 6, 2012.

Further, and subject to the holder’s “opportunity to be heard”, it appears that the four DPLs issued to 81 Mack were themost that may be issued to a single production site: MMAR, ss. 63.1 and 64. [46] The MMAR is conspicuously silent as to whether the “holder” of a DPL may delegate or assign his or her authorization toproduce, possess and keep marihuana (as set out in s. 34(1)) to agents or employees. The language of the provision suggests that thescope of the exemptions granted by the authorization extends no further than the holder of the licence. This

interpretation is consistentwith the general tenor of the MMAR which, by way of example, expressly addresses the narrow circumstances in which someone mayassist in the administration of marihuana to a person issued an ATP without themselves courting criminal liability: s. 23.

Suchconstruction is also reinforced by provisions that tightly restrict eligibility for DPLs and require applicants to make extensive disclosureof their personal circumstances, co-ordinates and backgrounds, including any adult criminal record for designated drug offences duringthe preceding ten years. [47] By way of contrast, the MMAR simply does not speak to applications from or the qualifications or licensing of employees. Nor is there any requirement that even the names of staff members, let alone their addresses or biographical information, be provided toHealth Canada.

Further, DPL applications “may not be made jointly with another person”: s. 37(3). One provision alone, s. 61(1), mayarguably be read as contemplating the involvement of others than the DPL holder in the operation of a production site, but then only withrespect to security concerns. It reads: “The holder of … a licence to produce shall maintain measures necessary to ensure the security ofthe marihuana in their possession”.

This regulatory obligation to maintain necessary security measures may explain the earlier-noteddistinction drawn by DC Karstoff between peripheral or incidental services, such as security and maintenance, that, in his view, could becontracted out and, on the other hand, the core production responsibilities related directly to the cultivation of marihuana that, hetestified, could be lawfully performed by only the production licence holder. [48] Karstoff’s distinction likely reflects a practical compromise adopted by those charged with enforcing a notoriously murkyregime.

However, this approach appears inconsistent with the MMAR’s general concern to closely scrutinize and license all participantsin the medical marihuana program so as to minimize the risk of criminal participation or leakage of the product into the recreational usecommunity. In my view, under the MMAR security personnel are no less parties to the production of marihuana than are thoseemployed as gardeners. (

c) Mistake of Law versus Mistake of Fact: The Governing Principles [49] Pursuant to s. 19 of the Criminal Code, “Ignorance of the law by a person who commits an offence is not an excuse forcommitting that offence” – or, in the vernacular: “ignorance of the law is no excuse”. A mistake as to the law or its meaning or effect isequally unavailing. However, a mistake of fact – such as, in one frequently occurring scenario, an accused’s claim that he mistakenlybelieved that a complainant in a sexual assault prosecution consented to intercourse – can, if premised on a genuinely held belief, afforda defence.

As put in R. v. Tolson, (1889), 23 Q.B. 168, one of the seminal English cases, at 181: a “belief in the existence ofcircumstances, which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a gooddefence”. To be clear, “defence” in this context is not meant to suggest that an accused bears a legal burden; it is, rather, simply a denialthat the Crown has proved the requisite fault element. The nature of this “defence” was explained by Dickson J. (and endorsed by themajority) in R. v.

Pappajohn, (SCC), [1980] 2 S.C.R. 120, at 148: Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with whichhe is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affir​mation of a positive defence. Itavails an accused who acts innocently, pursuant to a flawed percep​tion of the facts, and nonetheless commits the actus reus of anoffence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. (See also: R. v.

Robertson, (SCC), [1987] 1 S.C.R. 918, at para. 28.) An honest mistake as to a matter of mixed fact and

law is equally exculpatory: R. v. Prue; R. v. Baril, (SCC), [1979] 2 S.C.R. 547; R. v. Latouche, infra, at para. 43; R. v.Manuel (2008), 2008 BCCA 143 , 231 C.C.C. (3d) 468 (B.C.C.A.). [50] I leave to others (and there have been many) the explication of the policy rationales for the different legal treatment of mistakesof law from those of fact. The settled analytical distinction between the two is readily articulated. As summarized by the Court ofAppeal in R. v. Stucky (2009), 2009 ONCA 151 , 240 C.C.C. (3d) 141, at paras. 110-111; leave to appeal, (SCC); discontinuance filed, [2009] S.C.C.A. No. 186: In R. v.

Latouche (2000), (CMAC), 190 D.L.R. (4th) 73 (Can. Ct. Martial App. Ct.), at para. 35, Ewaschuk J.A.,citing R. v. Jones, (SCC), [1991] 3 S.C.R. 110, described the distinction between a mistake of fact and a mistake of lawin this way: As a general rule, a mistake of fact, which includes ignorance of fact, exists when an accused is mistaken in his belief that certain factsexist when they do not, or that certain facts do not exist when they do. Ignorance of fact exists when an accused has no knowledge of amatter and no actual belief or suspicion as to the true state of the matter.

By contrast, a mistake of law exists when the mistake relatesnot to the actual facts but rather to their legal effect. Professor Don Stuart explains the distinction in a similar fashion in Canadian Criminal Law: A Treatise, 5th ed. (Toronto: Carswell,2007), at p. 366: A mistake of fact is said to occur when the accused is mistaken in his belief that facts exist when they do not, or that they do not existwhen they do. On the other hand, a mistake of law is said to occur when the mistake is not as to the actual facts but rather as to theirlegal relevance, consequence or significance.

To prevail, a mistake of fact need be found honestly held, at least with respect to those offences that require intention or a subjectiveawareness of the prohibited circumstances. In such cases, the reasonableness of the belief, like factors personal to the defendant, weighin the assessment of the genuineness of the mistaken belief but is not a condition precedent to its validity: R. v. Pappajohn, supra, at124-126 and 131-132; R. v. Sansregret, (SCC), [1985] 1 S.C.R. 570, at para. 15; R. v.

Seaboyer (1992), (SCC), 66 C.C.C. (3d) 321, at 393 (S.C.C.). [51] Despite the near-heroic efforts of jurists and textbook writers to cleanly distinguish mistakes of fact from those of law, theboundaries of each remain a matter of continuing controversy, most particularly in the application of each doctrine.

In the 6th and mostrecent edition of his treatise on Canadian Criminal Law (Carswell, 2011), Professor Don Stuart rightly cautions, at p. 381, that the neatdefinitions of courts and scholars, easily distinguish … a mistake as to whether a gun was loaded (mistake of fact) from a mistake that pointing a loaded gun is not anoffence (mistake of law). However, they by no means resolve the difficult cases, however intricate the attempt to qualify them. Thankfully, this case does not lie at the especially difficult end of the spectrum. (

d) Applying the Law [52] The defendant concedes the actus reus of the offences with which he is charged: He was a knowing party to the production ofthe marihuana found at the 81 Mack grow op. He was also a party to its possession for, indisputably, the purpose of “trafficking” (asdefined in sub-s. 2(1) of the CDSA).

He says, however, that based on the production licences and related documentation at the grow opand information received from his employers, he honestly believed the production and related possession of marihuana at the 81 Macksite (and, not incidentally, his limited participation in such enterprise) was officially authorized and that any mistake he may havesuffered in this regard was one of fact or mixed fact and law that negatives the element of moral blameworthiness and thus exempts himfrom criminal culpability.

In response, the Crown’s first position is that the defendant was not mistaken; he knew full well that the vastmajority of the marihuana production at 81 Mack was outside the scope of any licensure and hid behind those licences in fraudulentlyadvancing a defence of mistake. In the alternative, the Crown submits the defendant, if honestly mistaken, was not mistaken as to thefacts but as to their meaning or consequence in law. In either event, says the Crown, the defendant is guilty as charged. [53] At the risk of abbreviating the suspense, I find myself in agreement with the Crown’s alternative position.

To be more precise,I am not persuaded that the defendant did not honestly if mistakenly believe that the marihuana cultivation at the 81 Mack grow op wasauthorized by production licences issued by Health Canada. However, I find that this belief amounts to a mistake of law and,accordingly, does not exculpate the defendant from responsibility for the two offences before me. [54] I acknowledge that the defendant’s account is not free of inconsistencies, improbabilities and evasions.

It is, for example,difficult to credit the defendant’s claims that he worked on spec and without pay for some two or three months, that he was hired to worka security detail at a multi-million dollar enterprise without any related training or experience, that did not know the last name or phonenumber of the man who hired him, that his employee access to the grow op was by way of a key hidden in the grass, that he had leftvaluable personal items like his iPad unattended at the site for a week, and that he casually used the premises as a rent-free motel after afight with his spouse.

The defendant’s evidence as to the number of occasions he had worked at the site dropped by half between hispolice interview and his appearance in the witness box. He withheld the name of at least one other grow op employee during his policeinterview. His evidence as to when he learned Vincent’s last name was somewhat elastic.

His explanation for his amended evidence asto the source of his cellphone ringing during the course of his police interrogation – an alarm reminder to water the plants v. a call fromhis wife – was, I find, less than convincing. [55] I am satisfied that the defendant, as he realized a police lasso was tightening about his neck, moved to minimize hisparticipation and protect, out of fear or some more benign basis for fidelity, others involved in the operation of the grow op.

Thequestion, however, remains: fact or law aside, is there an evidentiary foundation for the defendant’s claim that he honestly believed hewas exempt from the criminal law prohibitions of the production and possession of cannabis? Or, more precisely: is the evidencebearing on this question such as to warrant it being left to a trier of fact? (Or further still, and expressed in the language of evidentiary

burdens: does the defendant’s claim have an “air of reality”?) [56] In my view, the answer to this question, however framed, is ‘yes’. The defendant called 911 upon discovering the break-in at81 Mack. He waited for the police to attend. He directed them to the suspects and their truck. He waited for the police to return. Hevoluntarily attended with the police to further assist in their investigation.

He offered to further assist the following day. [57] The defendant’s utterances and demeanour on March 6th are as consistent as his conduct with his belief in his own innocence: He advises the 911-operator that the burglary is in a legal marihuana factory. He provides his name and date of birth without hesitationand, minutes later, his driver’s licence and cellphone number to the police. He volunteers to the first officers on the scene that he hadbeen watering the plants. Relying on the licences and police documents at 81 Mack, he repeatedly re-asserts the “legal”-ity of the growop in his police interview.

He declines access to counsel and appears genuinely shocked to learn that he is a subject of criminalsuspicion. He elected to testify, and although shaken in cross-examination he did not waiver from his core assertion of belief in hisexemption from criminal liability and his basis for this belief. [58] In short, I am satisfied that there is a realistic basis to conclude that the defendant’s conviction in his immunity from criminalexposure, however mistaken, was honestly held. As said by Wilson J. on behalf of a unanimous Supreme Court in R. v.

Robertson,supra, at para. 30, “if there is sufficient evidence to put the issue before the jury, then the Crown has the burden of proving beyond areasonable doubt that the accused did not have an honest belief” as to, here, his immunity to prosecution for production and possession ofmarihuana. In my view, there is here “sufficient evidence” and the Crown has not met its consequent burden. [59] I acknowledge a fundamental structural flaw in the preceding analysis.

As I ultimately conclude that the defendant’s mistakewas one of law rather than fact, then irrespective of its integrity the defence of mistaken perception ought never to have been left to atrier’s consideration. (See, for example, R. v. Klundert (2008), 2008 ONCA 767 , 238 C.C.C. (3d) 6, esp. at para. 22 (Ont.C.A.)) However, the same analysis, in my view, serves another purpose, one that focuses less on the legal or definitional dividebetween mistakes of law and fact and more on recognition that the belief at issue, no matter its genus, is sincerely held.

Put otherwise,my conclusion as to the honesty of the defendant’s claim of mistaken belief necessarily leads me to dismiss the Crown theory that hetendered such defence only to protect himself from criminal liability and, as well, the Crown’s invitation to reason that the defendant wastherefore not a mere night watchman but, in fact, a senior participant in a scheme to unlawfully produce vast amounts of marihuana.

Other than asking me to reject the honesty of the defendant’s claim of mistake and then swallow a large dollop of ancillary conjecture,there is no foundation for the Crown’s assertion that the defendant was a principal in the grow op at 81 Mack.

Said differently: myconclusion that the defendant may well have sincerely believed that his involvement in the production and possession of marihuana wasprotected by an umbrella of official exemption – even if mistaken and even if a mistake of law rather than fact – terminates, on therecord before me, speculation as to his knowing involvement in a substantial criminal enterprise. [60] One approach to determining the legally operative category of “mistake” may be by asking the basis of the belief at issue.

Inthe instant case, the footings for the defendant’s mistaken belief are uniformly sourced in law rather than fact. The defendant’s evidenceis that he understood that the production and possession of marihuana were criminal offences. He believed, however, that there wereexceptions to this general prohibition and that he fell within them. The particular exception upon which he relied was a government-sponsored program (the MMAR) that issued licences authorizing the production of marihuana for medical purposes.

Vincent hisemployer, had assured him that the grow op was “legal” and that he, the defendant, was protected by the same authorization. Anyresidual doubts the defendant may have had about the existence or legitimacy of this program or its application to the grow op at whichhe worked were erased, as he explained in his interview and testimony, by his attendance at the CCMC storefront and, most importantly,by the licences he inspected on the wall at 81 Mack.

Further, in the case of any serious trouble he was instructed to call the police andshow them these very licences. [61] The difficulty for the defendant is that his understanding of the compass of exemption extended by the licences was not onlymistaken but, as said in R. v. Stucky, supra, amounts to that mistake of law that occurs “when the mistake is not as to the actual facts butrather as to their legal relevance, consequence or significance”.

There is no doubt that there were MMAR production licences on the wallat the grow op, but their effect or meaning was very different than the broad scope of exemption mistakenly ascribed to them by thedefendant. Contrary to his apparent belief, DPLs are issued to persons not places. They authorize (or did, when the MMAR was still ineffect) named persons to produce marihuana, and only at a particularized location, but they do not afford a freestanding get-out-of-jail-free card to anyone assisting in the cultivation of marihuana within the confines of the specified address.

The defendant’s mistakenbelief in this regard was one of law. So too was his apparent ignorance that he could not possess or aid and abet others (even thoseholding DPLs) to possess or produce marihuana unless he himself was issued an ATP. The defendant’s mistaken belief that thelicences’ expiry dates and maximal plant limits were of little consequence again resounds in law, not fact. And the assurances of legalityhe received from Vincent, while perhaps personally persuasive, are of no exculpatory value in this context.

The Canadian authoritieshave consistently held that even the mistaken advice of a lawyer, honestly tendered and believed, is of legal rather than factual character. As succinctly put in R. v. Stucky, supra, at para. 109, “there can be no doubt that reliance on a lawyer’s advice is a mistake of law whichaffords no defence to the commission of an offence”. [62] The defendant’s misapprehension is materially no different than that of a motorist who argues on arrest that he mistakenlybelieved that his G1 licence authorized him to drive on a 400-series highway after midnight and without a qualified passenger.

Irrespective of the source of his misunderstanding (unless resulting from officially induced error) and no matter how sincerely held, thedriver’s misapprehension (indeed, any of the three) is not a mistake of fact but law. The defendant’s mistake is of the same analyticalcharacter and, accordingly, does not afford him a defence. D. CONCLUSION [63] For the foregoing reasons, I find the defendant guilty of the two charges upon which he was arraigned: production ofmarihuana and possession of the drug for the purpose of trafficking.

[ 64 ] I add only that I am painfully aware that I could much more swiftly have reached the same result by first determining the dispositive mistake-of-law character of the defendant’s belief, and by then declining to assess the sincerity of that belief on the premise that this latter exercise was no longer necessary in view of my finding of guilt on the alternative basis.

I have endeavoured to address both the argument as to the proper legal classification of the defendant’s belief and the honesty with which it is held for two reasons: first, to afford a comprehensive set of findings lest any review is entertained; and, second and most importantly, to provide a factual platform for the sentencing hearing that inevitably follows this decision. Released on January 22, 2015 __________________________ Justice Melvyn Green