R. v. Buller and Jacobs Date:, 2010 BCPC 456

Citation: R. v. Buller and Jacobs Date: 20101130 2010 BCPC 0456 File No: 3707-1 Registry: Nakusp IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EZRA ELM BULLER ANGELA JUNE JACOBS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE SPERRY Crown Counsel: R. Brown Counsel for the Accused Buller: B. Suffredine, Q.C. Counsel for the Accused Jacobs: J.

Cowan Place of Hearing: Nakusp, BC Date of Judgment November 30, 2010 [ 1 ] THE COURT: Ezra Buller and Angela Jacobs are before the court for sentencing having been found guilty after a trial on charges of cultivation of marihuana and possession for the purpose of trafficking cannabis marihuana. These offences took place in the hamlet of Brandon adjacent to the Village of Slocan City on March 8, 2008. [ 2 ] Mr. Buller is also subject to a forfeiture application with respect to his real property in Brandon which was the site of this indoor grow-op.

While this application is being heard together with the sentencing hearing, it is distinct and governed completely by the code set out in s. 19.1 of the Controlled Drugs and Substances Act . [ 3 ] On March 8, 2008, the Royal Canadian Mounted Police executed a search warrant at 603 Park Avenue, Brandon, the home of Mr. Buller, Ms. Jacobs, her two children aged eight and three, and the six-month-old baby of the two of them. The police found two grow rooms. [ 4 ] The basement of the house was dedicated to raising clones of which there were 204 and the processing of harvested marihuana.

The top floor of the house was dedicated to bringing plants through the vegetative state to budding and eventual harvest. [ 5 ] There were 255 two to three-foot healthy budding plants in this room. These plants were grown in soil with manual irrigation. There were 10 high-powered sodium lights on a 12-hour ripening cycle. The room was lined in reflective white plastic.

There were eight fans, a heat exchanger, an industrial charcoal filter - see photograph number 52 - and CO2 enrichment through a "Fuzzy Logic" CO2 controller. [ 6 ] This operation was not hydroponic, did not have automated drip irrigation, and did not have mechanized track lighting. It was, in Sergeant Wicentowich's description, an operation of medium to high-medium sophistication for an indoor grow. I accept that description.

[ 7 ] Mr. Buller gave evidence on the sentencing/forfeiture hearing. He testified that he bought the property from a Mr. Berrill in August of 2004. He said he did not purchase the property for the purpose of starting a grow-op, but he did nonetheless start a grow-op in January of 2005 in the basement of his home which he later expanded to the top floor with the CO2 generator being the recent addition to his enterprise. [ 8 ] Ms. Jacobs and her two children moved in with him in 2006.

He told the court that his was a three-stage-three-harvest-a-year operation that was designed to provide personal use marihuana for himself, Ms. Jacobs, and his ill father who he gave marihuana to for pain control.

He acknowledged that he sold some for $80 a quarter ounce to friends, but minimized that aspect of this endeavour by saying he grossed $3,000 to $7,000 per year from sales. [ 9 ] The only access to the top-floor grow room was through the two older children's bedroom and the only child-proofing of that door was the removal of the doorknob so it was knife-blade or screwdriver access through the door and up the stairs to the grow room. [ 10 ] Mr. Buller said he was only achieving one-quarter to one-half ounce of bud per plant.

This is in sharp contrast to Sergeant Wicentowich's opinion that these plants would yield a conservative three ounces per plant as his experience, his reading, and his personal experiments with three-foot plants have yielded approximately five ounces per plant for mature budded plants. These plants were somewhat but not dramatically smaller. [ 11 ] Mr.

Buller said that if he had not been the subject of a search on March 8th, 2008, he would have harvested the budded plants the following day (photos 48 to 49 and 50 show the buds on the plants and these photos were part of Sergeant Wicentowich's information at hand when he authored his opinion). [ 12 ] Sergeant Wicentowich's opinion was that a heavy user of marihuana could smoke two grams of that product per day. His opinion was not challenged in any way. He did his calculations on three ounces of product for each of the budding plants and each of the clones.

That would be two-thirds of a year's production with a minimum value of that two-thirds of a year's production if sold by the pound of $112,000 at $1300 a pound or a maximum of $241,000 sold at $2,800 per pound. [ 13 ] These figures were not challenged and are realistic if the yield was, in fact, three ounces per plant. If Mr. Buller, Ms. Jacobs, and Mr. Buller's father used very slightly less than two grams per day, one ounce of marihuana would last the three of them five days which would amount to six ounces per month or 72 ounces which is four-and-one-half pounds per year. Even at Mr.

Buller's under-whelming estimate of one-half ounce per plant, he was growing more than four times per year what the three of them would smoke in a year. [ 14 ] The biggest fact in Mr. Buller's favour is that he and Ms. Jacobs were in a small house in an inexpensive community with only an old motor home and an old SUV as signs of prosperity. There were no boats, sleds, quads, or other toys and the kitchen of the home appears to be pedestrian but functional. These are not the hallmarks of someone getting rich on the illegal economy. [ 15 ] Mr.

Buller paid for the electricity he used in his grow which is a factor in his favour. There was no bypass. He had no surveillance system, nor were any weapons as defined in s. 2 of the Criminal Code of Canada found during the search. [ 16 ] The wiring for the top floor grow room appeared to Constable Wicentowich's eye to not be a particular fire hazard.

The children did have ready access to the grow room with its hot lights, CO2, chemicals, moving fans, et cetera. [ 17 ] In Brandon, the risk of a violent grow-op rip/home invasion while always present would be much less in this bucolic little community than in a larger centre. [ 18 ] Mr. Buller is 36 years of age and neither he nor Ms. Jacobs have a criminal record. [ 19 ] These are the facts I will consider in sentencing Mr. Buller and Ms.

Jacobs and, clearly, a number of these facts are also relevant to consideration on the forfeiture application made by the Crown under s. 16 of the Controlled Drugs and Substances Act . The property is presently assessed by the B.C. Assessment Authority at $107,200. [ 20 ] Mr. Buller purchased 603 Park Street, Brandon, in 2004 with a $10,000 down payment made up of monies given him by his mother for that purpose and secured by an agreement for sale in the sum of $60,000 which was registered on March 30th, 2005.

As at August 1st, 2009, the amount owing on the agreement for sale was $57,212 with a per diem thereafter of $15.67 per day. [ 21 ] There are three issues in the forfeiture application. First is whether the property is offence-related property as defined in s. 2 of the Controlled Drugs and Substances Act and thus subject to forfeiture pursuant to s. 16 of the Controlled Drugs and Substances Act .

The accused acknowledged through their counsel that this was offence-related property. [ 22 ] The second issue is whether forfeiture of all or part of the property would be disproportionate to the gravity and circumstances of the offence such that the court should decline to order forfeiture of the property or some portion of it under s. 19 of the Controlled Drugs and Substances Act . [ 23 ] Finally, the third issue is whether the court should use its discretion not to forfeit the property due to considerations with respect to extended family members pursuant to s. 19.1(4) of the Controlled Drugs and Substances Act . [ 24 ] The lead case and primary governing authority is R. v.

Craig , 2009 SCC 23 . The governing principles from this case are an order for forfeiture under s. 16(1) is subject to s. 19.1. This means that before a court orders forfeiture, it must consider the factors set out in s. 19.1 including the proportionality factors in s. 19.1(3); R. v.

Craig at paragraph 25 . [ 25 ] The fourth [inaudible] under s. 19.1(3) of the Controlled Drugs and Substances Act is discrete and distinct from terms of imprisonment or other aspects of sentencing. [ 26 ] While the rest of an offender's sentence is governed by the principles of sentencing found in the Criminal Code , the forfeiture of

offence-related property is determined with reference only to the principles contained in s. 19.1(3) which provide a different and a unique template; that is R. v. Craig , paragraphs 11, 13, and 30 . [ 27 ] Under s. 19.1(3), the court must consider whether the impact of the order of forfeiture in respect of real property would be disproportionate having regard to: (

i) the nature and gravity of the offence; (ii) the circumstances surrounding the commission of the offence; and (iii) the criminal record, if any, of the person charged with or convicted of the offence. [ 28 ] If so, on a plain reading of this section, the court may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order in place, and that is R. v. Craig at paragraph 26 . [ 29 ] Based on the particular circumstances of the case, judges have the discretion to order no forfeiture, partial forfeiture, or full forfeiture for offence-related property; R. v.

Craig , paragraph 59 . [ 30 ] The burden of proving the disproportional effect of an order of forfeiture falls upon the accused. [ 31 ] When applying the proportionality test, the court in Craig provided the following guidance.

First, the nature and gravity of the offence can include the character and quantity of the substance involved, the level of sophistication of the crime, the extent of the commercial production or distribution; that is Craig at paragraph 56 . [ 32 ] Second, the circumstances surrounding the commission of the offence can include the offender’s role in the offence, the nature of the property and the manner in which it was used in the commission of the offence, risks to the community, whether the use detrimentally affected legitimate use of the property, whether the property was fortified or adapted to accommodate the offence, the extent or involvement of the offender in organized crime; Craig at paragraph 57 . [ 33 ] Finally, third, does the offender have a criminal record; Craig , paragraph 58 . [ 34 ] The proportionality analysis and the possibility of partial forfeiture to prevent the potentially Draconian effect of full forfeiture without an analysis of its impact; for that, see Craig at paragraph 50 . [ 35 ] A fortified property purchased for illegal purposes and thus only dedicated to the commercial production and distribution of illegal substances and perhaps a connection to organized crime will likely attract full forfeiture; Craig at paragraph 59 .

A court might decline to order forfeiture in the case of an individual with no criminal record and no connection to organized crime who grows very little marihuana in the home; that is Craig again at paragraph 59 . [ 36 ] Finally, at paragraph 86 and 95, 96, by Judges McLachlin, Rothstein, and Fish, property that was purchased before the offence with legitimate funds and without contemplation of future criminal activity may, and I underline the word "may," not be the subject of forfeiture. [ 37 ] One of the officers attending on the search estimated that 30 percent of the square footage of the house was dedicated to marihuana production. [ 38 ] Given all of the facts clearly set forth and being governed by s. 19.1 of the Controlled Drugs and Substances Act , as exemplified and cited in R. v.

Craig , supra , I am of the view that full forfeiture would be disproportionate, but that partial forfeiture is compelled and that I would fall into error if I did not order partial forfeiture. [ 39 ] While only 30 percent of the house was dedicated to production, the remainder, while providing living space for the family, facilitated the covert enterprise by providing cover and easy unobtrusive access at will to the enterprise. This is demonstrated in part by over three years of undiscovered activity. [ 40 ] With all of this in consideration, I am of the view and order that 50 percent of Mr.

Buller's equity in 603 Park Street in Brandon, British Columbia, be forfeited to the Crown in Right of Canada. [ 41 ] In sentencing Ms. Jacobs and Mr. Buller, I am mindful of the provisions of s. 718 to 718.2 of the Criminal Code , s. 742.1 of the Criminal Code , ss. 5 and 7 of the Controlled Drugs and Substances Act , and R. v. Su , a decision of the British Columbia Court of Appeal cited at 2000 BCCA 480 , R. v. Wallis , a decision of the British Columbia Court of Appeal cited in [2007] B.C.J. No. 1542 , R. v.

Nguyen , a 2002 decision of the British Columbia Court of Appeal delivered January 7, 2002, cited at B.C.J. No. 18, R. v. Vo , a decision of the British Columbia Court of Appeal cited at 2009 BCCA 471 (CanLII) , [2009] B.C.J. No. 2222 , and finally and most particularly R. v. Proulx , a year 2000 decision of the Supreme Court of Canada cited at 2000 SCC 5 (CanLII) , [2000] 1 S.C.R. 61 . [ 42 ] Ms. Jacobs' involvement started after the enterprise was a growing concern. It was ancillary to her relationship with Mr.

Buller and she was only an occasional helper in the production, although a continuing beneficiary of the results. [ 43 ] Considering particularly s. 742.1 and R. v.

Proulx , hers is an easy case in which to conclude that a conditional sentence is appropriate and I find that a conditional sentence of 10 months is the appropriate sentence. [ 44 ] The terms of the conditional sentence order are the statutory terms that you will keep the peace and be of good behaviour; that you will appear before the court when required to do so by the court. [ 45 ] You will within the next two days or, in any event, before 3:00 p.m. on Friday, report by telephone to a supervisor and, after that first reporting, you will report when required by the supervisor in the manner required by the supervisor.

[ 46 ] You will remain in the Province of British Columbia unless you have written permission to leave the province obtained from the court or your supervisor, and you will promptly notify the court or your supervisor in advance of any change of your name or address and promptly notify the court or the supervisor of any change in your employment or occupation. [ 47 ] Ms. Cowan, what is your client's present residence? [ 48 ] MS.

COWAN: It is 8741 Martens Road in Slocan. [ 49 ] THE COURT: You will live at 841 [sic] Martens Road in the Village of Slocan City or where approved in writing in advance by your supervisor.

Any change in your address must be approved by your supervisor. [ 50 ] You will during the first five months of this sentence remain in your home or its grounds 24 hours a day, seven days a week save and except to attend on medical or other emergencies for yourself or your family; to travel to, to travel from, and remaining at work, education, vocational training; to travel to, travel from, and attending court, professional appointments, court-ordered counselling or treatment sessions and supervisor reporting appointments; to travel to, attend at, and travel from religious services should you choose to attend any; travel to and travel from and shop for the necessities of life between the hours of 9:00 a.m. and 3:00 p.m. on Saturdays. [ 51 ] You can go to Nelson or Castlegar as you choose on Saturdays to do your shopping, but that is the only day that you go shopping, you understand that?

You also may be out of your residence for any other exception approved in advance by your supervisor. [ 52 ] When not in your residence, you will carry a copy of this order on your person and when you are out of your residence for a reason other than already specified in this order as approved in writing by your supervisor, you will carry that supervisor's writing on your person; do you understand that? [ 53 ] THE ACCUSED JACOBS: Yes. [ 54 ] THE COURT: Now, a conditional sentence order is jail in the community, Ms. Jacobs.

This is a jail sentence in which you have the privilege of serving that jail sentence within the community. People in jail cannot drink and you are precluded from the consumption of alcohol during the duration of this sentence, and you are not permitted to smoke dope when you are in jail, either. [ 55 ] You are also precluded from the consumption of any drugs set out in Schedules I, II, and III of the Controlled Drugs and Substances Act unless prescribed for you by a physician.

If you obtain from your physician a prescription for the use of marihuana, that then would be a prescription and if you smoke marihuana in compliance with that prescription, you would be permitted to do so. There is no prescription for alcohol. [ 56 ] You will answer the phone in your home. Do you have a landline? [ 57 ] THE ACCUSED JACOBS: Yes. [ 58 ] THE COURT: Yes.

You will answer the phone in your home at any time that you are required to be within your home and you will answer a knock to the door by anyone announcing themselves as a peace officer or supervisor of the conditional sentence order. [ 59 ] During the second five months of your sentence, you will obey a curfew which shall be between the hours of 9:00 p.m. and 6:00 a.m.

The restrictions on travel, of course, being outside the home, do not apply during the second five months except between the hours of 9:00 p.m. and 6:00 a.m. which is universal, you cannot be out of your house except for medical or other emergencies between those hours. [ 60 ] You will maintain a landline telephone so that your supervisor or the police can phone and say, "Ms. Jacobs, are you home?" Hopefully, you will be there to say yes. [ 61 ] Have I missed anything, Mr. Brown from the Crown's perspective? [ 62 ] MR.

BROWN: She should answer the door should there be -- [ 63 ] THE COURT: Yes, yes, I thought that was implicit, but you should -- if somebody knocks on the door, answer it. [ 64 ] MR. COWAN: I think he said it. [ 65 ] THE CLERK: No, you said that, Your Honour. [ 66 ] THE COURT: Did I? All right. [ 67 ] THE CLERK: Yes. [ 68 ] THE COURT: Thank you. [ 69 ] MR. BROWN: Just a little concern about the possession of marihuana. It should be -- that is smoking it -- [ 70 ] THE COURT: She needs a prescription. [ 71 ] MR. BROWN: Prescription, but should she also have a licence?

It is still unlawful. [ 72 ] THE COURT: Yes, that is an issue, yes, all right. [ 73 ] THE CLERK: So prescription and licence?

[ 74 ] THE COURT: Prescription and licence. I just do not want -- I do not want to sentence you to breach. I do not want to get you in trouble. That is why I am saying this. [ 75 ] MR. BROWN: So it would be a licence to possess. [ 76 ] THE COURT: Yes, licence to possess. [ 77 ] THE CLERK: That is not part of the order yet, Your Honour. [ 78 ] THE COURT: No, she has to have it.

Before she can have it, she has to have a prescription from a doctor and a licence to possess -- [ 79 ] THE CLERK: Yes, okay. [ 80 ] THE COURT: -- so she does not get into trouble smoking marihuana. [ 81 ] Also, I am required by the provisions of s. 109 of the Criminal Code of Canada to prohibit you from possessing any firearms, ammunition, explosive substance, prohibited weapon, prohibited device, restricted weapon, restricted device, crossbow, crossbow bolt, or licence to obtain any of the above for a period of 10 years from today's date.

Do you own any guns? [ 82 ] THE ACCUSED: No. [ 83 ] THE COURT: I also have to consider a victim impact surcharge. There shall be none. [ 84 ] I also have to consider whether or not a sample of your DNA should be taken and I am not going to order that. [DISCUSSION RE ACCUSED JACOB'S ADDRESS] [ 85 ] THE COURT: It is 8741 -- [ 86 ] THE CLERK: Yes, I just wanted to make sure. [ 87 ] THE COURT: -- Martens Road in the Village of Slocan City. [ 88 ] THE CLERK: Yes. [ 89 ] THE COURT: With respect to Mr.

Buller, the duration of the enterprise, its evolution in both terms of size and sophistication, his putting three children at continuous risk from 2006 until his arrest outweigh all the mitigating factors I have outlined in these reasons, and I conclude that these are circumstances as envisaged in paragraph 127 of R. v. Proulx where the justice of the Supreme Court said: A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be.

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. [ 90 ] I can say that that is to deter similar conduct both by Mr. Buller and by other like-minded individuals and, to deter Mr.

Buller and other like-minded individuals in the community, I sentence him to eight months in jail after considering the sentencing cases that I have previously cited. [ 91 ] There will be no victim impact surcharge. [ 92 ] I am required, sir, to prohibit you from possessing any firearms, ammunition, explosive substance, prohibited weapon, prohibited device, restricted weapon, restricted device, crossbow, crossbow bolt, or licence to obtain any of the above for a period of 10 years from today's date. [ 93 ] I also have to consider whether or not a sample of your DNA should be taken for the DNA databank.

You are not a violent offender. I see no potential of violence in you. I will not order a DNA sample be taken, and I will decline to impose a victim impact surcharge. [ 94 ] MR. BROWN: The Crown is seeking forfeiture of the grow equipment. [ 95 ] THE COURT: There will be an order that the grow equipment seized at the time of the search be forfeited to Her Majesty the Queen in Right of Canada for destruction. [REASONS FOR SENTENCE CONCLUDED]