2016 QCCQ 17277, 2016 QCCQ 17277

R. c. Wickens 2016 QCCQ 17277 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF PONTIAC LOCALITY OF CAMPBELL’S BAY Criminal division No. 555-01-000008-137 DATE: October 19, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE ANOUK DESAULNIERS J.C.Q. ______________________________________________________________________ THE QUEEN v. BARKLEY WICKENS Accused ______________________________________________________________________ VERDICT ______________________________________________________________________ [ 1 ] The accused, Barclay Wickens, is charged with production of cannabis, contrary to subsection 7(1)(2)(

b) of the Controlled Drugs and Substances Act (CDSA). The offence allegedly occurred on September 5, 2012, in Clarendon. [ 2 ] The Court must decide whether the Crown has proven beyond a reasonable doubt that the accused is guilty of the offence. 1. Background [ 3 ] Police detective Marc Vaillant obtained a general warrant to investigate for a lot of approximately 300 acres belonging to the accused’s father. The land, situated in a rural area, was a lot of uncultivated fields and wooded spaces.

A number of paths passed through it; some allowed a motor vehicle to pass, others not. [ 4 ] On September 4, 2012, Detective Vaillant and two other officers accessed the lot by a small dirt road and, after traveling fairly deeply into the lot, discovered a large marihuana grow site, consisting of approximately 1800 plants ranging from 3 to 4 feet each in height. The plants were almost ready to be harvested. [ 5 ] Detective Vaillant testified that a strong smell of cannabis led him to the grow site, which was initially out of sight, behind a hill, as he approached.

The size of the plantation was approximately 200 feet deep and 75 to 100 feet wide. The plants were growing in long rows forming a rectangle. Two 3 kg containers of fertilizer were found in a nearby wooded area. Several garden hoses had been installed to irrigate the plantation with water from a small creek located to the east. However, the creek seemed to have run dry.

Many plants looked like they were in need of water and the plantation seemed to have been neglected. [ 6 ] Detective Vaillant and his colleagues had intended to install hidden hunting cameras to try and photograph whoever was attending to the site, but the plantation was too large; the officers felt they had little chance of photographing any suspect close enough for identification. [ 7 ] The same three police officers returned to the grow site the next day, in the morning, hoping to catch the marihuana grower(

s) in action. They hid nearby and waited all day. [ 8 ] At around 6:23 p.m., as the officers were ready to leave, Detective Vaillant noticed the accused walking nearby. He saw him a second time at the far end of the plantation, coming toward him.

The accused then raised his collar over his nose and walked among the marihuana plants near the edge of the grow site. [ 9 ] Detective Vaillant saw him a few moments later at the south end of the grow site, walking away quickly. [ 10 ] The three police officers followed the accused discreetly until he reached his pick-up truck, which was parked about 500 feet from the grow site. They then proceeded to arrest him for production of cannabis. 2. Analysis 2.1 The law [ 11 ]

Section 2 of the CDSA provides that to “produce” means “to obtain the substance by any method or process including . . .

cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained”. [ 12 ] In its 2011 decision, Rochon c. R. , our Court of Appeal described the mens rea and actus reus of the offence of production as follows: Les éléments constitutifs de la mens rea de l'infraction de production de marihuana (art. 7(1) et (2) Loi réglementant certaines drogues et autres substances) sont les suivants : la connaissance que la culture, la multiplication ou la récolte de la substance a lieu et la connaissance de la nature de la substance produite.

En ce qui concerne l'actus reus, la poursuite doit prouver au-delà de tout doute raisonnable que l'accusée a cultivé, multiplié ou récolté la substance. [1] [ 13 ] Courts have consistently ruled that mere presence at the scene of a crime does not prove culpable participation in its commission. [2] Accordingly, an accused’s mere presence on a production site is not sufficient in itself to conclude that he participated in the production of cannabis. [3] [ 14 ] Also, knowledge of a grow operation is not enough in and of itself to prove guilt beyond a reasonable doubt. In R . v.

Bi , [4] the Court of Appeal for British Columbia stated: Evidence that establishes mere knowledge of the criminal conduct taking place in the residence is not enough. There must also be evidence from which it can be inferred that the accused person owned the marijuana crop, cultivated the crop, aided or abetted somebody else in the criminal operation, or otherwise had some control over the crop. [ 15 ] R. v. Bi was cited, approvingly, by our Court of Appeal in the 2013 decision of R. v.

Turcotte , in which the Court also stated: Il est depuis longtemps établi que la seule présence d'un accusé sur les lieux d'une infraction ne peut, en elle seule, justifier une déclaration de culpabilité. [5] [ 16 ] In R. v. Lai , the Court of Appeal for British Columbia overturned a conviction against an individual who was found sleeping in a house used for a marihuana grow operation.

The Court concluded that the evidence was too weak to support a conviction for production of marihuana, and made the following observations: The case against the appellant comes down to his temporary presence in a house used to grow marihuana. Maintenance of the operation is not the only inference; he could have slept over for a number of reasons. There is no circumstantial evidence that he did anything to “produce”, including “cultivating, propagating or harvesting”, marihuana: Controlled Drugs and Substances Act, s. 2(1). [6] [ 17 ] Our Court of Appeal referred to R. v. Lai , with approval, in Pinard v.

R . , [7] rendered in 2015. 2.2 Application of the law to the facts of the case A. Mens Rea [ 18 ] Did the Crown prove, beyond a reasonable doubt, that the accused knew that a substance was being cultivated, propagated or harvested on his father’s land, and that this substance was marihuana? [ 19 ] During his cross-examination, the accused admitted having guessed that the plants were marihuana. This, he said, made him nervous and scared.

He pulled his shirt over his nose in reaction to the “awful smell”; he could see that he was standing in a large grow operation. [ 20 ] The accused testified that he walked, without stopping, through the edge of the plantation because this was the more direct route to return to his truck. He claims he pushed the plants out of his way as he walked. [ 21 ] Officers Vaillant and Labelle, on the other hand, testified that the accused pulled his shirt over his nose and lowered his baseball cap over his eyes, presumably to cover his face, when he arrived at the plantation.

They both say they saw him touch a marihuana bud on at least one occasion and bring his fingers to his nose. Detective Vaillant explained that smelling the buds in this way helps to determine whether they are mature and ready for harvest. [ 22 ] In addition, the accused knew that another plantation had been raided by the police nearby, on his father’s land, approximately two weeks before, i.e. on August 22, 2012.

The Court allowed the Crown to cross-examine the accused on these events, ruling that this evidence should not be used as evidence of bad character (as there was not sufficient evidence that the accused was personally involved with this plantation), but should, rather, go to the accused’s state of mind when he walked along the plantation on September 5, 2012. [ 23 ] Evidence regarding the August 22 police raid showed that the accused witnessed police officers and vehicles going back and forth on his property to access a grow site located some distance behind his home, on his father’s land.

He saw the police leave with at least one trailer loaded with marihuana plants. [ 24 ] The accused surely had those recent events in mind when he crossed through the marihuana plantation on September 5, 2012. The recent discovery of another marihuana plantation on his father’s land contributed to identifying the plants around him as marihuana. [ 25 ] Also, both officers Vaillant and Labelle testified that the accused raised his collar over his nose and lowered his baseball cap over his eyes, presumably to avoid being identified. The Court finds their testimonies both credible and reliable.

That action by the accused contributes to demonstrating that he was aware of the illicit nature of the plantation. [ 26 ] For these reasons, among others, the Court finds that the Crown has proven beyond a reasonable doubt the required mens rea , i.e.

that the accused knew, as he walked near and on the grow site, that the substance being cultivated was marihuana. B.

Actus Reus [ 27 ] Did the Crown establish, beyond a reasonable doubt, that the accused cultivated, propagated or harvested marihuana on September 5, 2012? [ 28 ] A number of elements, including the following, lead to the conclusion that the accused did not arrive at the plantation by accident, as he so claims: - The accused could have driven his truck much closer to the creek he said he wanted to check, but he chose instead to park it some distance away from the creek and the nearby grow site; - Instead of following on foot the dirt road leading to the creek, once he had parked his truck, the accused opted to walk through very thick brush, as if trying to avoid being seen; - The accused raised his collar over his nose and lowered his baseball cap over his eyes, as if to avoid being identified. [ 29 ] The accused’s version, that he happened upon the plantation by sheer coincidence, seems hardly credible to the Court.

The same is true for his explanation that he touched the marihuana plants only to move them out of his path while he walked through the plantation.

The Court concludes from the evidence that, instead, the accused took the time to smell a bud at least once. [ 30 ] That being so, the prosecution’s evidence regarding the actus reus of the offence of marihuana production can generally be summarized by the following elements: - The accused deliberately went to the grow site; - His explanation for being there is rejected by the Court; [8] - The accused touched a bud, at least once, to assess its maturity; [ 31 ] The Crown did not present any direct evidence that the accused participated in the production of the marihuana plants, nor any evidence that he aided or abetted anyone in this process. [ 32 ] The police searched the accused, his truck and his residence, and found neither production equipment nor drugs that could link the accused to the grow site.

The accused was present on the grow site for only a few minutes on September 5, 2012, and there is no evidence whatsoever that he may have been present on other occasions. These facts, among others, differ from that in the Supreme Court of Canada decision of R. v. Jackson . [9] [ 33 ] And, contrary to Mowry v.

R. , [10] cited by the prosecution, the accused was not seen handling cultivation equipment, such as pruning shears or a garden hose. [ 34 ] The Crown is inviting the Court to find the accused guilty of production based on circumstantial evidence, i.e. based on the inference that the accused must be the person who cultivated the plants, as he was present on the grow site and was observed smelling a marihuana bud. [ 35 ] A trial judge who is presented with purely circumstantial evidence must be satisfied beyond a reasonable doubt that the accused’s guilt is the only logical or rational inference. [11] [ 36 ] Is the Court satisfied beyond a reasonable doubt that the accused’s guilt is the only logical or rational inference that can be drawn from the very limited, circumstantial evidence presented by the Crown in the case at bar? [ 37 ] The answer is no. [ 38 ] There is no evidence that the accused has any particular control over his father’s land.

The accused was at the location only very briefly and, during that time, his only action that may be associated with cultivating or harvesting cannabis was smelling a bud. However, that action could be just as attributable to simple curiosity, the same as his presence at the location. [ 39 ] There is no material evidence connecting him to production, despite searching his residence and his truck. [ 40 ] The cannabis plants needed watering and appeared neglected. The accused did nothing to remedy that situation during his very short visit to the location.

Nothing indicates that he handled the cultivation equipment (such as garden hoses and fertilizer) that was near the plantation. [ 41 ] The accused’s implausible explanation for his presence at the location may be attributable to factors other than guilt, for example, his desire to conceal the identity of the person truly responsible for the production of the cannabis.

According to the police officers, several paths led to the production site, including one from nearby neighbours, and another ending close to the property belonging to the accused’s father. [ 42 ] The circumstantial evidence, considered as a whole, is tenuous and is not sufficient to conclude that the accused’s guilt is the sole logical and rational inference to be drawn. [ 43 ] This is not to say that the accused is necessarily innocent of the offence with which he is charged. The following remarks by our Court of Appeal in Pinard v. R. apply in the present case:

Of course, the evidence does not rule out the possibility that the appellant is guilty. Perhaps we could even go so far as to say that on the basis of the evidence, it is more likely that he is guilty than innocent. . . . That is not the standard that must be met: guilt must not be only plausible, likely or feasible, it must be established beyond a reasonable doubt.

In the circumstances, whether guilt is the only rational inference that can be drawn from the circumstantial evidence presented by the Crown, or the only reasonable inference, is not obvious. [12] Conclusion [ 44 ] The accused must therefore be acquitted of the charge brought against him. FOR THESE REASONS, THE COURT: ACQUITS the accused. __________________________________ ANOUK DESAULNIERS J.C.Q. Mtre. Isabelle Michaud Crown Attorney Mtre. Paul Charlebois Defence Attorney Dates of hearings: May 17th, June 8th, June 29th, and July 4th 2016