R. v. Thon et al. Date:, 2011 BCPC 465

Citation: R. v. Thon et al. Date: 20110309 2011 BCPC 0465 File No: 51892-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KATHLEEN LENA SEGUIN 51854-1, 51854-2, 51854-3, 51854-4, 51865-3-A, 51865-2-C REGINA v. KEVIN MICHAEL MORIARITY 51864-1, 51864-2-A, 53035-1 REGINA v. JASON TRUMAN THON 52390-1 REGINA v. DEBRA DENISE MCDONALD-MYERS EXCERPTS FROM PROCEEDINGS RULING ON APPLICATION OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for Crown : P. Whyte

Counsel for the Accused McDonald-Myers, Moriarity, Thon : J. Conroy Counsel for the Accused Seguin : R. Gill Place of Hearing: North Vancouver , B.C. Date of Judgment: March 9, 2011 [ 1 ] THE COURT: This application is for adjournment of a trial for a number of different matters that are to be held concurrently. All of the accused are charged with various counts of trafficking in cannabis. There is also one count relating to psilocybin and one count of an obstruction of an officer. I do not have all the informations before me. In any event, this matter has been before the court and proceeding for some time.

The investigation concluded or I should say a search warrant was executed December 6, 2008. Charges were laid shortly thereafter on most of these matters. [ 2 ] The reason these matters are being heard together, and this has been proceeding on this basis for some period of time, is that the defence is making a constitutional challenge with respect to these persons and the purpose for which they were trafficking.

At paragraph 2 and 3 of the materials setting out their reasons for the application to adjourn they say as follows: The Crown theory of the case is and has been that the accused operated a for-profit cannabis distribution organization which featured delivery of cannabis to persons in North Vancouver and elsewhere. [ 3 ] Paragraph 3: The defence theory of the case is and has been that the accused are principally motivated by a desire to provide access to a variety of high-quality strains of medical cannabis for those persons who find it to provide therapeutic benefits for their conditions and their symptoms of those conditions, and that to the extent that fail to make other people, including undercover police, these fails represented failure of protocol throughout and outside the ordinary course of the Internet Compassionate Association's model.

Based on this theory, counsel for the accused plan to challenge the validity of the law, including possession and distribution of cannabis. Later, after decisions were rendered in other medical cannabis-based Charter challenges, the defence theory grew to include arguments related to abuse of process. [ 4 ] One legal office, with two counsel from it, Mr. Conroy and Mr. Tousaw, are representing Mr. Thon, Mr. Moriarity and Ms. McDonald-Myers. Until recently they also represented Ms. Seguin, who has now obtained new counsel, Mr. Gill.

We have a trial date coming up, commencing March 28 th , and it is for a period of two weeks. [ 5 ] What has occurred is this: despite the Crown's efforts to ensure that appropriate disclosure was made, and their understanding that they had made full disclosure and there was nothing further to come, on February 24 th , they received, from the police, a new report to Crown counsel with respect to a potential charge of money laundering against Mr. Thon. Attached to that is a voluminous expert report analyzing various banking documents which were obtained through production orders issued April 2 nd , 2009.

Although the report does not indicate when all of these documents were turned over to the Forensic Accounting Management Group of the Provincial Government, it has been two years since the documents were obtained. [ 6 ] What is of particular concern to the Court is that the Crown in this matter, who has been handling this prosecution since the beginning, has never been told that, in fact, these documents were given to the Forensic Accounting Management Group by the investigating officer, and that they were in the process of preparing this report.

I gather it was as big a surprise to Crown when this arrived on his desk on February 24 th , 2011, as it is to the Court now. I say that because this matter has been before for pre-trial conferences since May 3 rd of 2010. [ 7 ] In any event, what the report indicates is that one of the accused that Mr. Conroy and Mr.

Tousaw are representing may, according to the report, be involved in money laundering operations and, in particular, diverting funds obtained through - I gather the theory is - through the distribution of cannabis, and, in particular, through the Internet Compassionate Association. [ 8 ] First of all, with respect to Mr. Thon, as an accused, this is significant information. I accept Mr. Conroy's and Mr. Tousaw's, through his written submissions, position that this changes things in a significant way for the defence, and in particular Mr.

Thon requires an opportunity to respond to this report in order to make full answer and defence. It may well be that the other accused need to examine this report in terms of them making full answer and defence, and overarching all of this is an obvious potential conflict now between the three accused, who are represented by Mr. Conroy and Mr. Tousaw. [ 9 ] I appreciate the Crown says that all along their theory has been that this has been a for profit operation and the fact that they have tracked down where some of those profits went should not change things at this point in time.

However, we do not know, nor can we inquire, nor should we inquire, into whatever communications, governed by solicitor-client privilege, there are between Mr. Conroy, Mr. Tousaw and their clients.

Frankly, to go ahead, in my view, invites a worse result than an adjournment, in that, first of all, the right to full answer and defence might not be fully observed, and, secondly, that we may well end up in a situation where we have a mistrial partway through. [ 10 ] The delay, as a result of this, lays truly at the feet of the police for not informing their own Crown, who could then have informed the defence and the Court, that this report was underway and was to be expected. I am hard-pressed to think of any rational

reason why the police would not have told the Crown handling this matter that this report was underway with respect to Mr. Thon. [ 11 ] For all those reasons, I will grant an adjournment. (RULING CONCLUDED)