R. v. Macsanszky, 2012 ONCJ 319

Citation: R. v. Macsanszky , 2012 ONCJ 319 ONTARIO COURT OF JUSTICE (Toronto Region) BETWEEN: HER MAJESTY THE QUEEN -and- THOMAS MACSANSZKY REASONS FOR JUDGMENT Justice W. P. Bassel April 23, 2012 Appearances: Ms. S. Virk For the Crown Mr. J. Christie For the Defence. Mr. Macsanszky has entered pleas of not guilty to 4 charges alleged to have occurred on December 3, 2009, briefly: Production of Marihuana, 2 Counts of Possession for the purpose of trafficking of marihuana, and one count of theft of electricity. All of the charges relate to the activities in the premises at 20 Boylen Street, Toronto.

The Crown called 5 police witnesses. The defence called 3 witnesses, a Toronto police officer, and 2 civilians, one a Toronto Hydro employee, and the other, a tenant at one point of the subject premises.

THE MAIN ISSUE The essence of the Crown case rests on circumstantial evidence. The defendant did not testify, but defence evidence was called to which I will refer. In terms of the evidence seized and other information upon which the Crown relies to support its position that knowledge and control and possession have been established, this case rises or falls on what, if any, inferences can or cannot be drawn from the facts, in the circumstances.

BRIEF BACKGROUND TO THIS CASE Whereas in most cases, it is necessary to not only review, but also explain why certain conclusions have been made on the evidence, in this case, however, a number of issues have been conceded by the defence and are not in issue.

Although I will briefly set out the backdrop of the case, it has been conceded by the defence that the activities being carried on at this address did constitute a marihuana grow operation, that the marihuana discovered there by the police was possessed for the purpose of trafficking, and that the evidence of the Toronto Hydro employee was uncontroverted regarding the theft of electricity at these premises.

What is a key issue here is whether the Crown has proven to the requisite degree knowledge and control of the accused, possession, as defined by law as a principal participant or party of the operation being conducted there. Ms. Debbie Kupchko, an employee of Toronto Hydro, testified, and her evidence was acknowledged to be uncontroverted, that certain hydro usage and other indicia led her to conclude that electricity was being stolen from 20 Boylen starting from February 3, 2008.

As a result of certain steps taken by her, the Toronto Police were contacted, a search warrant obtained, and it was executed on December 3, 2009 at that address. The Crown called 5 police witnesses, and I do not intend to repeat a great deal of their evidence in terms of their observations and conclusions that it was a grow operation, in view of the defence concession, however, what steps they took and did not take, in terms of determining who was or was not in possession with knowledge and control, of the house and the undertaking in it, are very important issues, and which I intend to review.

For the purposes of the first stage, however, I believe it suffices to say that based on the evidence of the 4 officers who testified and who had entered the premises, and the evidence of Sgt. Babiar who was qualified as an expert in grow operation undertakings, and whose evidence I accept, basically the whole house from the basement and up was a fully functioning and active marihuana grow operation, with plants at different heights and stages of growth as well as drying contraband. Some 17,440 grams of marihuana was identified. From 2 grow rooms in the basement were seen many plants growing.

Also in the basement and elsewhere in the house was found, what I will call, the usual paraphernalia for such operations, including, programmed timer boards, ballasts, fans, carbon filter system to deal with smell, a scale, and high intensity lights. From the refrigerator were seized some 300 clones of marihuana clippings. Marihuana was also found in the hallway. In the loft upstairs there was contraband hanging to dry on hangars, and there were dark coverings on those windows.

What I have referred to as the first stage then, was this an active grow operation, and that possession here was for the purposes of trafficking has been established. THE MAIN ISSUE It is the second stage which is a very live issue, namely, has the Crown proven beyond a reasonable doubt that the accused was in possession of, either jointly or by constructive possession of the undertaking being conducted at this home. This case is based on circumstantial evidence. No one was in the residence when the search warrant was executed.

A few days after the warrant was executed, the accused, who was the registered owner of the property, surrendered to the police. When the police searched the premises, we heard that the house was in a considerable state of disarray. In the kitchen area, the police seized a number of documents relating to the accused which I agree can be broken down into 2 categories.

One group of documents included a TD Bank statement and envelope paper dated February 1990, addressed to the accused at 6171 Bathurst, a TD undated document regarding a Visa card with a PIN number, addressed to accused at 6171 Bathurst, an undated post card from Hungary to the accused at 6171 Bathurst.

The second group of papers relating to the accused included a Toronto Hydro bill dated July 19, 2009 in his name and addressed to him at 20 Boylen, a letter date printed November 19, 2009 addressed to accused at 20 Boylen from RDA Insurance company relating to the subject premises, a letter dated November 24 th , 2009 from RDA Insurance to the accused at 20 Boylen, an Enbridge gas bill arrears Collections Notice dated October 13, 2009 addressed to the accused at 20 Boylen relating to service at that address, a City of Toronto water bill in the name of the accused, addressed to him there, and being a credit bill notice, dated June 29, 2009, relating to service at 20 Boylen.

We heard evidence that there were many other papers and documents in and around the house, that the police focus was with regard to materials linking the accused to the premises, and that there were many other papers and writings hither and thither, some of which the police did not examine, and there were other documents at the house which were not presented or identified by the police. Also, no effort was made by the police to take any fingerprints or DNA from items and objects which were inside the premises, such as bottles, papers, cartons and sundry articles.

We also heard evidence that the police were aware at an early point, of a connection to that address of one Hashim Curtis. We heard that a police officer had investigated Curtis in April 2008, that Curtis had indicated that 20 Boylen was his address at that time, and that the officer drove Curtis to 20 Boylen in April 2008 where Curtis went into the house to retrieve a computer. That officer did not enter the premises.

During the execution of the search warrant, when the officers entered the premises, a DVD was taken of the interior and its contents, and this was played in court, and in addition to the drug production apparatus and contraband shown in it, there were also some evidence of a musical box and some other items that the witness Weinstein purported to identify as belonging to Curtis.

As part of the case for the Crown were filed certified copies of Land Titles ownership and mortgage documents which showed the accused as the owner and mortgagor of the premises from January 2008, and which set out 20 Boylen as the address designated for

service to the accused relating to the documents and property. The defence called Ms. Sharon Weinstein as a witness. She advised that she had been a tenant of 20 Boylen from February to July 2008.She identified a Collection Company collection letter addressed to her at 20 Boylen, and that Curtis was also there while she was there,and that she paid rent to him. Although she said that she knew the accused for a number of years, she said she never saw him at thehouse.

She said that while she lived there for those months, that she never saw a grow operation in the house, that she was not permittedto go into the basement, and that there were no dark window coverings. She said she only smelled burnt marihuana from what had beensmoked by Curtis during her time there. She was shown the police DVD and another tape, and she said she recognized a music case witha sticker that she said belonged to Curtis. She also looked at a YouTube which purported to show some things in the house as belongingto Curtis. She told us that while she lived there, that she used the kitchen.

She said she did not know who lived there in December 2009,and her last connection to the house or Curtis was in July 2008. THE POSITIONS OF COUNSEL I received written submissions from both counsel which I have carefully considered. I do not intend to repeat all of their submissionshere. In a nutshell, it is the Crown’s position that Mr.

Macsanszky was criminally liable to the offences being committed in the premises, andthat there is evidence to the requisite degree establishing possession, knowledge and control by him, that on proven facts, rational andnon speculative inferences may and should be drawn linking the accused to these illegal activities, and that the only reasonable inferenceto be drawn was that Macsanszky had control of the premises either by joint or constructive possession.

For the defence, in brief, it is submitted that the police exhibited tunnel vision in having a focus and mindset only towards the accused,that their searches and investigations were not only inadequate, but that they blocked out any consideration of an alternate suspectpossibility, this especially in view of their knowledge as to Curtis having noted his address at 20 Boylen, that the police deliberatelydisregarded other potentially relevant evidence because of their mindset on Macsanszky.

It is also submitted that the Weinstein evidenceshould be accepted, that there were items of value connected to Curtis which she identified, and that they were in the house when thepolice entered it, thus supporting a conclusion that someone other than the accused had direct personal connection to the premises.

It isalso submitted by the defence that the discovery of the papers seized by the police in the accused’s name, some of which were quitedated, and some addressed to him at another address, and others more current, are consistent at their highest, as establishing the accusedas owner (which is not disputed) and that the existence of those documents cannot and should not be construed as proving the accused’spresence in the house. ANALYSIS The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption ofinnocence.

This standard of proof has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The onus of proof alwaysremains with the Crown and never shifts to the accused. There is no onus on Mr. Macsanszky. As submitted, this case involvescircumstantial evidence, and the determination of what are primary or proven facts, and then to determine what rational non-speculativeinferences flow from them. See McLetchie 2100 O.J. 1244, Para 58, Justice Code.

Great care must be taken by me to separate the wheatfrom the chaff, in other words, to separate permissible inferences, from unfounded, possibly suspicious, but nonetheless impermissiblespeculation. Also, I am mindful of the fact that ownership does not amount to possession and control. I was also referred to a decision by Hill J., in Emes, affirmed by the Ontario Court of Appeal at (ON CA), 2001 O.J.2469, and which decision has some bearing on the issue of the probative value of personal documents seized where a grow operation isbeing conducted.

It is clear that the accused was the owner at the relevant time, and the essential title documents and mortgage papers showed 20 Boylenas his address for service of any notices concerning his property. It is also clear from the evidence of Sgt. Babiar and Det. Kovacs, thereasoning in R. v. Arnold, and common sense, that a grow operation is a continuing process, and that by the very nature of plants growingand requiring water and attention, that a person or persons would have to be in attendance at the home at least every few days if not moreoften.

It is also quite clear on the evidence that the house was more or less chocker block full as a grow operation at various stages ofgrowth, and the presence of discarded beer cans, wrappers, juice in the refrigerator, a sofa, are indicia of attendances by someone to theproperty. With regard to the evidence of Ms. Weinstein, I do not find that it is of any real assistance to the issue at hand. While shepurported to identify a music box, belonging to Curtis when she saw the DVD, her evidence from looking at a YouTube showing certainitems as possibly belonging to Curtis, was not of great assistance.

I agree with the Crown submissions that Ms. Weinstein’s overalltestimony (which the Crown submits I should reject) however even if accepted by me, is of very little value. There is no evidence of anyvalue to these certain items. Her evidence does not throw any light on the important timeframe in December 2009 when the policewarrant was executed. Her connection to both the house and Curtis were long gone, i.e., some 18 months by then.

She said she never sawthe accused at the house, nor did she, in those 5 or 6 months she was living there in 2008, ever see a grow operation, something we knowwas very very evident throughout the house, on December 3, 2009, where the whole place was chocker block full of this operation. Shesaid she was never allowed in the basement, and she never came back to 20 Boylen after July 2008, had no further contact with thisperson Curtis, nor did she have any idea as to who was living there or was attending there on the alleged offence date.

The fact of herpaying rent to Curtis during that period does not throw any light on the existence of any arrangement with the accused either for tenancyterms, or for who was obliged or was paying the hydro charges. Similarly, the evidence of P.C. Wilson from April 2008 has no bearingon the state of events some 19 months later. I cannot accede to the defence submission that I should consider that there existed someform of tenancy relationship as between Curtis and the accused, that Macsanszky was an absentee slum landlord.

Weinstein never sawthe accused at that house, nor did she know what, if any, rent arrangements Curtis had with the accused. I am not suggesting that there isor was any onus on the accused, however, no evidence whatever was called, Curtis or otherwise on this point, and it is sheer speculation,not founded on even a shred of evidence, or possible inference that this situation existed, or that Curtis was paying any of the utility bills,and indeed, the only evidence present were relatively current gas and hydro bills addressed to, and in the name of the accused to 20

Boylen, a hydro account that we heard was opened in the name of the accused with Toronto Hydro from the outset of his ownership. With regard to the documents seized by the police relating to the accused, I would agree that some of them were dated, and some showed a mailing address to the accused elsewhere. On the other hand, they were located at 20 Boylen.

Of more note, however, was the fact that important, currently dated papers, a fire insurance renewal notice dated November 19, 2009, just a few weeks before these charges, current utility notices, insurance information, were not only at the premises, addressed to and in the name of the accused, but they were also found in and near the kitchen counter area. We had heard from Weinstein that while she was there she did use the kitchen area. I adopt as applicable the reasoning from Emes, as follows: “The documents are effectively relevant for the fact of their existence as real or tangible evidence.

The probative value relates to the circumstantial inference drawing apart from the truth of the contents of the seized documents….. “that personal papers are as a general rule, maintained in a location to which a person has access and control. When documents such as income tax forms……..insurance papers and the like are located in a residential premises, it is surely a fair inference that the person identified in the documents is an occupant with a significant measure of control. This is a matter of logic and common sense.” End of quote. I adopt that reasoning to this case.

Upon considering the cumulative effect of the evidence adduced, including those documents connected to the accused at the premises, in the accused’s name, describing the subject matter of transactions and business regarding that house, they have strong probative value, and in my view, the only reasonable and permissible inference to be made here, is that the accused did have the requisite knowledge of and measure of control and occupancy to the premises and contraband operation activities at the relevant time.

It is also of note that the defendant had signified that any land registry or mortgage notices regarding his title and property should be sent there. I have considered the submission regarding the police ignoring the alternate suspect issue concerning Curtis, the fact that some items were at the premises, and that he would not likely abandon them. The fact that these items were seen there does not exclude or displace the only reasonable inference to be drawn, namely, that the accused was in possession of, and did exercise some measure of control over the premises.

Those items that were seized by the police to which I have referred are inexorably linked to the accused and to no one else. I adopt and repeat again as applicable that reasoning from Hill J., in Emes , that personal papers are, as a matter of common sense and logic, generally maintained in a location to which a person has access and control. In the circumstances of the case here, the view that those current and important papers linked to the accused were either stolen, or stored there does not fit with the factual probabilities existent here.

Similar to the Emes case, in the case at bar, the police evidence including the DVD photographs of these premises in my view point to the fact that this residence at the relevant time was totally committed to a grow operation and was not being occupied for daily living or habitation. The refrigerator was full of bagged clones. There is no evidence to suggest that anyone other than Mr. Macsanszky had control of the premises at the relevant time. As I apply that reasoning from Emes, referring to R. v.

Noble , whereas I am very aware that silence cannot shore up or bolster a weak Crown case, however, one can conclude from the failure of the defendant to testify that there is no unspoken, innocent explanation about which the trier of fact must speculate. If the totality of the evidence leads to guilt beyond a reasonable doubt, the accused’s silence simply fails to prove any basis to conclude otherwise. See Noble.

The cumulative effect of the circumstantial evidence as it relates to the issue of knowledge and control, in my view drives the only reasonable conclusion that the defendant was, and I find as a fact that the accused was in joint or constructive possession of, and did have knowledge and control of the premises and the contraband operation and activities taking place therein on the date in question. I am satisfied that the Crown has proven the essential ingredients of these offences beyond a reasonable doubt and there will be findings of guilt. Dated at Toronto this 23 rd day of April 2012