R. v. Fercan Developments Inc., 2013 ONCJ 826

COURT FILE No.: Central East Region-Newmarket 11-04549 and 11-04550 DATE: 2013·09·11 CITATION: R. v. Fercan Developments Inc. , 2013 ONCJ 826 ONTARIO COURT OF JUSTICE IN THE MATTER of a forfeiture application by Her Majesty the Queen pursuant to

Section 16 of the Controlled Drugs and Substances Act . BETWEEN: HER MAJESTY THE QUEEN Applicant on Forfeiture — AND — FERCAN DEVELOPMENTS INC. Respondent on Forfeiture — AND — HER MAJESTY THE QUEEN Applicant on Forfeiture — AND — GRVN GROUP INC. Respondent on Forfeiture Before Justice Peter C. West Evidence heard on October 1, 2, 3, 4, 9, 10, 11, 12, 2012; November 27, 28, 2012; December 3, 5, 6, 7, 10, 12, 13, 14, 17, 2012; January 7, 9, 10, 11, 2013; February 6, 7, 2013; March 18, 20, 2013. Oral Submissions heard on June 17 & 18, 2013. Reasons for Judgment released September 11, 2013 Mr. J. Selvaratnam, Ms. K.

Healey, Ms. A. Elbaz....................... Applicant on Forfeiture, Crown Mr. Brian H. Greenspan, Ms. Naomi Lutes Respondent of Forfeiture, Fercan Developments Inc. Mr. William Friedman, Mr. Patrick Bakos............. Respondent of Forfeiture, GRVN Group Inc.

WEST J.: Introduction [ 1 ] This application is brought by the Applicant pursuant to sections 16 and 19 of the Controlled Drugs and Substances Act , R.S.C. 1996, c. 19 (the “ CDSA ”), which permit courts to order forfeiture of “offence-related” property, for forfeiture of the properties at 1 Big Bay Point Road, Barrie, Ontario and 1408 Rainbow Valley Road, Phelpston, Ontario. [ 2 ] Fercan is the registered owner of lands upon which the former Molson Brewery Plant was situated on 1 Big Bay Point Road, Barrie, Ontario.

GRVN is the registered owner of a residential dwelling located at 1408 Rainbow Valley Road West, Phelpston, Ontario. [ 3 ] The sole shareholder of Fercan is Vincent DeRosa. He is also the corporation’s sole officer and director. The sole shareholder, officer and director of GRVN is Nicola DeRosa. [ 4 ] In January 2004, a search warrant was executed with respect to the Fercan property, the former Molson Plant, and two large indoor marihuana grow operations were discovered in two of the leased premises located in separate parts of the Molson Plant.

A number of individuals were charged with designated substance offences under the CDSA in respect of the two marihuana grow operations (Project Plants). The police investigation continued after the execution of the search warrant (Project Plants and Project 3D); however, this did not lead to any charges being laid against Fercan or Vincent DeRosa. [ 5 ] In 2009, a further police investigation (Project Birmingham) was commenced utilizing a police agent.

Further designated substance offences were laid against additional individuals who were involved in the two indoor marihuana grow operations originally discovered in 2004, as well as new CDSA and Criminal Code offences. In addition, individuals were charged with designated substance offences, which were committed during this new police investigation at the property situated at 1408 Rainbow Valley Road West, Phelpston.

This further police investigation also did not lead to any charges being laid against Fercan, Vincent DeRosa, GRVN or Nicola DeRosa. [ 6 ] It is my understanding from the submissions of counsel and from the two Forfeiture Applications brought by the Crown that many, if not all, of the individuals who were charged as a result of these police investigations have pleaded guilty and have been convicted of designated substance offences contrary to the CDSA in relation to the two above-noted properties.

These individuals include Robert Bleich, Scott Walker, Thomas Gates, Rayne Sauve, Craig Walker, Scott Dillon and Michael Dicicco (all charged in 2004) and Robert DeRosa, Jeffrey DaSilva, Dennis Hould, Robert Bleich, Larry McGee and Davorka Pelican (all charged in 2010). Two further individuals, Jeffrey Lawson and Dan Dolic, who from the evidence appear to be the individuals in charge of the various marihuana grow operations, have not been brought before the courts.

No evidence was led respecting Jeffrey Lawson, however, the Crown indicated in their factum, at paragraph 8, that his charges were stayed by the Crown. Dan Dolic is apparently serving a lengthy federal penitentiary sentence in Louisiana for importing and trafficking in cocaine. His charges in Canada are still outstanding while he is serving this sentence. [ 7 ] The Crown brought two Applications for Forfeiture in 2011, pursuant to section 16(1) of the CDSA in respect of the above-noted two properties.

Notice, pursuant to section 19(1), was provided by the Crown to the owners, Fercan and GRVN, of the two properties and to First Ontario Credit Union Ltd. (First Ontario), which is the mortgagee in respect of 1 Big Bay Point Road.

These applications arise from the conviction of a number of persons with designated substance offences, which include, inter alia , production of marihuana in association with a criminal organization. [ 8 ] Both properties are subject to ex parte Restraint Orders, dated September 21, 2010 respecting the 1 Big Bay Point Road property and April 11, 2011 respecting the 1408 Rainbow Valley Road property. [ 9 ] This matter has been extensively litigated and I have written two previous rulings; first, upholding the constitutional validity of sections 16 and 19 of the CDSA (September 27, 2012) and second, holding that the Crown bears the onus, on a balance of probabilities, throughout the forfeiture application, including the burden, pursuant to section 19(3) of the CDSA, of satisfying the court that the lawful owner or person lawfully entitled to possession does not appear innocent of complicity in the designated substance offences or of collusion in relation to such offences and therefore is not entitled to the return of the property (January 9, 2013). [ 10 ] It was agreed at the commencement of the forfeiture hearing that the Crown would lead evidence to first establish that the properties were offence-related properties, as defined in sections 2 and 16 of the CDSA , and second, that the Crown would call any evidence, in its possession, on the issue of complicity or collusion. [1] A total of 38 witnesses were called by the Public Prosecution Service of Canada (the Crown) and by Fercan and First Ontario.

The Crown’s forfeiture application was heard over 36 days. The Crown ultimately abandoned their application for forfeiture in respect of First Ontario on February 6, 2013 (Day 31). [ 11 ] I have received extensive written factums and casebooks from all parties, as well as detailed oral submissions from counsel and I would like to express my thanks to counsel for their assistance. Factual Background (

a) The Former Molson Brewery (Molson Plant) [ 12 ] Vicar Properties Inc. (Vicar) purchased the former Molson Brewery Plant (hereinafter referred to as the Molson Plant) on October 1, 2001 for $8 million. Vicar was a company owned solely by Vincent DeRosa. The purchase price was split into two amounts; $7.5 million for the property and $500,000 for the chattels. Another company owned by Mr. DeRosa purchased the chattels, namely, Gab Capital Corp.

[ 13 ] Mr. DeRosa testified that he purchased the property for three reasons: as a real estate opportunity, particularly given its location on Highway 400; for the purpose of selling the chattels, which were included in the purchase price, for which Mr. DeRosa testified he had received estimates could be sold between $3 and $10 million; and, as the closing date approached, Mr. DeRosa became interested in establishing a water bottling operation, utilizing the Formosa Springs well, which was on the property. In light of the totality of the evidence I heard on this application, I accept Mr.

DeRosa’s explanation as to why he decided to purchase the Molson Plant. [ 14 ] On January 1, 2003, Fercan Developments Inc. (hereinafter referred to as Fercan), another company owned solely by Vincent DeRosa, amalgamated with Fermanaugh Realty Holdings Ltd., another company owned solely by Vincent DeRosa and Vicar, referred to above, and retained the name Fercan Developments Inc. (Fercan). As a result, Fercan became the owner of the Molson Plant. Vincent DeRosa remains the sole shareholder, officer and director of Fercan. [ 15 ] In May or June 2001, prior to the agreement of purchase and sale closing, Mr.

DeRosa engaged his brother Robert to act as the property manager respecting the Molson Plant. One of Robert DeRosa’s responsibilities was to oversee the work being done by Moonstone Mechanical respecting the sale of the Molson chattels. Initially, Moonstone Mechanical was hired by Vincent DeRosa to provide the estimate of the value of the Molson chattels prior to the purchase, and subsequently, they were involved in the sale of those chattels, as well as the conversion of some of the Molson equipment and the purchase of new equipment to be used by the water bottling operation, Aurora Beverages.

Robert DeRosa had an office at the Molson plant in the Canadiana Room, although there was evidence from a number of witnesses that in the beginning he maintained an office in the guardhouse. Robert DeRosa was also responsible for leasing areas within the Molson plant and collecting the rents from the various tenants. [ 16 ] The Molson Plant had approximately 450,000 square feet of space situated on 35 acres of land. After the plant purchase closed in October 2001, J.J.

Barnicke put up a large sign facing the 400 Highway advertising the availability of leasing space at the Molson Plant. [ 17 ] Shortly after Vicar purchased the Molson Plant, Robert DeRosa advised Vincent DeRosa that he had a pallet company, Ontario Pallet, that wanted to lease space in the south/east corner of the building. The lease, Exhibit 40, was signed on October 23, 2001, by Brian McIntyre as President of 1477990 Ontario Inc. (Ontario Pallet). The lease commenced on November 1, 2001.

The leased area was approximately 30,000 square feet. [ 18 ] Sometime in November 2001, Robert DeRosa advised that he had a group of people who were interested in leasing the space containing the stainless steel fermentation tanks to grow fish. Their company was called Barrie Good Fish Company. Robert DeRosa sketched an area on a plant diagram, which became part of the Offer to Lease, Exhibit 10, [2] signed by Mike Dicicco and Vincent DeRosa on November 21, 2001. [3] The lease commenced on January 1, 2002.

The leased area was approximately 33,000 square feet and included the old Beer Store where Mike Dicicco lived.

There was what was purported to be a fax [4] from Robert DeRosa to Vincent DeRosa respecting the Barrie Good Fish Offer to Lease; however, there was no fax header on the document to indicate that it was in fact sent and Vincent DeRosa testified that he had no recollection of receiving such a fax from his brother. [ 19 ] I will deal with Ontario Pallet and Barrie Good Fish Company in more detail later in my reasons. [ 20 ] Between late 2001 and 2004, various companies leased space in the Molson Plant, including Kumi Canada, RK Trucking, Karlea Trucking, First Transport, Simcoe Steam Brewing, Smitty’s Enterprises, Barrie Good Fish, Ontario Pallet (1477990 Ontario Inc.), National Roasters and Aurora Beverage Corporation.

The Crown and defence called a number of witnesses from these tenants. [ 21 ] The evidence from numerous witnesses was that Vincent DeRosa often came to the Molson Plant on Saturday mornings, where he would meet with his brother, Robert, with George Arnold, who had been hired to set up the Aurora Beverages water bottling operation and to decommission National Roasters and sell off the overstocked coffee, and with Ken and/or Andy Fraser from Moonstone Mechanical to discuss the sale of the Molson’s chattels and conversion of Molson’s equipment for use with Aurora Beverages.

He would usually stay at the Molson Plant for about an hour. (

b) Oro Centre Property [ 22 ] On May 1, 2002, Vincent DeRosa purchased a 50,000 square foot commercial building at 2921 Highway 11 North in Oro-Medonte for $950,000. Robert DeRosa was given the responsibility of acting as the property manager for this property. Vincent DeRosa testified he had different property managers in each of the geographic areas that he owned commercial properties, for example: Hamilton, St. Catharines, Windsor, Montreal, Barrie and Oshawa. [ 23 ] The main tenant in the Oro Centre was Canada Post.

The building was in a state of disrepair and needed a new roof, exterior brick and stucco work. Mr. Davood Shogi-Baloo was hired by Robert DeRosa to act as an on-site property manager, responsible for showing prospective tenants the units, collecting the rent and for overseeing the renovation work. [ 24 ] Unit 3 of the Centre was rented to an individual called Jeff Dylan, to store mattresses. Mr. Shogi-Baloo testified that he showed Unit 3 to Jeff and then referred him to Robert DeRosa to negotiate pricing for the lease. [ 25 ] After the lease was signed, Mr.

Shogi-Baloo only entered Unit 3 on a couple of occasions to show fire or city inspectors around. He observed that Jeff had been doing renovations by putting up drywall and repairing the floors. According to the Agreed Statement of Facts filed on Robert DeRosa’s guilty plea, Robert DeRosa conducted walk-through inspections as the construction of the grow site was being completed. [ 26 ] The evidence disclosed that Vincent DeRosa never attended the Oro Centre. (

c) Ssonix Property [ 27 ] Vincent DeRosa purchased Ssonix as a business in the early 1990s from his brother Robert DeRosa, as a result of Robert and his partner running into financial difficulties. Ssonix recycled water from products received from gas stations and was profitable

until technological changes took place in the industry. In 2001 or 2002, Vincent DeRosa purchased the building where Ssonix was located, along with other tenants. [ 28 ] Brian Payne was hired by Vincent DeRosa to be the general manager of Ssonix. He held that position from 1992 or 1993 until sometime in 2003. The building that Ssonix occupied was located at 20 Keefer Road in St. Catharines. There were 10 units and Ssonix occupied Units 7, 8, 9 and 10 and the remaining units were leased to other businesses. Vincent DeRosa rarely visited this property. Mr. Payne testified that Mr.

DeRosa came to Ssonix on only two or three occasions during the entire time he was general manager. In 2003, it was Mr. Payne’s understanding that the building was being sold to someone called Jeff (Lawson). Mr. Payne was instructed by Vincent DeRosa to assist Jeff in making the necessary changes to the certificates held with the Ministry of the Environment, although Mr. Lawson never asked him to provide that assistance. [ 29 ] Mr. Payne testified that it was his understanding there was a firm offer between Mr.

DeRosa and Jeff Lawson in the summer of 2003 to purchase the Ssonix business and the building at 20 Keefer Road. Mr. Lawson requested early access from Mr. Payne in order to move in. After Mr. Lawson obtained access he changed the locks and Mr. Payne no longer had keys to Unit 6. (

d) The Tenants at the Molson Plant (

i) Smitty’s Enterprises [ 30 ] Marie Carere-Smith and her husband operated Smitty’s Enterprises, which had one large transport truck and a straight truck. They had one employee. They attended the Molson Plant to see whether they could lease space for their trucks and they met with James Hayes in the guardhouse. On October 31, 2002, they signed a lease with Mr. Hayes, Exhibit 46, and began parking in the truck shipping/dock area, Area 7A on Exhibit 6. They would sleep in their truck Monday to Thursday and go home to Owen Sound on the weekends. There were other trucking companies leasing space as well.

She remembered First Transport and Karlea as two of the trucking companies and two gentlemen called Dan and Roger. She also met Lex, a maintenance man, who fixed a dock plate when they began leasing space. [ 31 ] Ms. Carere-Smith never observed anything untoward while they leased space in the plant. She had no idea that a marihuana grow operation was in the plant close to the area she and her husband parked and slept in their truck.

She was in the Molson Plant with her husband on January 9, 2004 when the police executed their search warrant. (ii) Kumi Canada [ 32 ] Justin Moreau is employed with Kumi Canada as Assistant Vice President and Plant Manager. Kumi is a tier one automotive supplier, with Honda Canada being their main customer. In 2002, Mr. Moreau managed the department that was leasing space at the Molson Plant. They leased warehouse space to receive and re-package parts shipped from their sister company in Alabama. In 2002, Kumi originally leased 55,000 square feet of space in the front portion of the warehouse area.

This amount of space was reduced over the course of that year. He dealt mainly with James Hayes. Initially he was in the Molson Plant every morning, sometimes the whole day; however, after the space was organized he had a supervisor, Jean Stewart, who handled the day-to-day operation. [ 33 ] Mr. Moreau recalled a letter written by James Hayes (Exhibit 49) advising that the lease for the space occupied by Kumi was to be terminated effective December 6, 2003 because it was required for warehousing needs associated with the water bottling operation. Kumi paid $6.00 per square foot.

In January 2003, for 25,000 square feet, the rent was $13,375. [ 34 ] Jean Moores (Stewart) worked as a supervisor for Kumi at the Molson Plant. James Hayes showed her the area of the warehouse that Kumi would be using. They were using the area in front of the docks on Exhibit 6. She was introduced to Bob, who James told her was the brother of the owner of the property. She also met a couple of other gentlemen who were in the process of converting the beer equipment to a water bottling company. One of the maintenance guys was called Lex.

She met Vincent DeRosa on a couple of occasions during the daytime, when he was with James, but it was only a brief, “Hi, how are you doing” type thing. [ 35 ] Ms. Moores was aware that there was a coffee business operating in the plant. Once or twice a month there would be a very strong coffee burn smell. This business was run by someone she knew as Import George. She also met another man called George who worked in the offices doing accounting or something. [ 36 ] When Kumi was assembling and packaging plastic parts for Honda at the Molson Plant there were 35 to 40 workers involved.

This number decreased as the leased space was reduced. Ms. Moores and Mr. Moreau did not provide any evidence concerning the marihuana grow operations, particularly the grow operation in the space leased by Ontario Pallet, which was close to the space they leased. (iii) First Transport [ 37 ] Mr. Kenneth Judd is the owner of First Transport. He was looking to rent a cross dock facility and a real estate agent, Victor Slobodian, assisted him in leasing 5,000 square feet at the Molson Plant. He spent time at the Molson Plant as did some of his employees as they were needed.

Exhibit 43 is the lease agreement between First Transport and Vicar Properties. Mr. Slobodian filled it out and brought it back signed by the owner or an authorized representative of the property. The signing took about 5 days. The lease commenced on February 1, 2003 and terminated on January 31, 2004. Mr. Judd had the first three dock doors. [ 38 ] Mr. Judd also leased some space to store product that he was transporting for a bed and bath company. He erected a chain link fence around this property. It was Mr.

Judd’s evidence that he was not restricted in any way and he and his employees would wander around the facility. He observed machinery being taken apart in various locations. There was a coffee grinding facility. There was also an area that looked like a water bottling operation was being set up. He smelled coffee but never saw it in operation. He also did not see the water bottling operation up and running. The primary contact person was James, who he believed was a property manager or something. [ 39 ] Mr.

Judd also was aware of two other trucking companies; Smitty’s, a husband and wife who operated straight trucks and

a transport company, using flatbed trailers for moving machinery, operated by Roger Kelly. There was also a company called Kumi that utilized part of the warehouse as a staging area for parts for Honda. Exhibit 50 is a photograph of one of Mr. Judd’s trucks in the Molson Plant in the space he leased. [ 40 ] Mr. Judd was in the premises during business hours and after business hours in the evening and on weekends.

He did not provide any evidence concerning his being aware of the marihuana grow operations in the Molson Plant. (iv) Simcoe Steam Brewing Company [ 41 ] Peter Chiodo owns Simcoe Steam Brewing Company and leased space at the Molson Plant starting in March 2003. His company was building a brewery in downtown Barrie and they stored their equipment at the Molson Plant while the construction was going on. He rented space in the area marked “warehouse” on Exhibit 6. [ 42 ] He was never told that he could not go into any areas within the Molson Plant.

When he was given a tour of the plant by James he observed a water bottling operation and a coffee company. The only person he had contact with was Bobby DeRosa. Mr. Chiodo testified that he looked into bringing spring water from the Molson Plant to his brewery and spoke to Bobby DeRosa about arranging it. They obtained a milk truck of water from the Molson Plant for over a year at a cost of $300-$325 a load. [ 43 ] Bobby DeRosa also purchased all of Mr. Chiodo’s brewery’s spent grains, which he would use to feed his buffalo. Ms. Underhill testified that initially Mr.

Chiodo’s brewery’s spent grains were used to feed her cattle. Mr. Chiodo also met a man named George, who he believed was the controller of the water bottling company. He observed people working at the plant setting up the water bottling operation. He was aware of Moonstone Mechanical trying to set up the lines for the bottling company by adapting the Molson equipment. He was also aware that they were removing and selling equipment and his company purchased some pieces of equipment. [ 44 ] He was renting space in the Molson plant the day the police raided the marihuana grow operations.

His space was right next to the area being used by the grow operators. He testified that he was shocked by the discovery and could not believe it had being going on. (

v) RK Trucking [ 45 ] Roger Kelly has been in the trucking industry for 35 years. He had operated RK Trucking since 1988. He leased space at the Molson Plant through J.J. Barnicke. He rented space to park his tractor trailer trucks as well as office space. He rented the space through James Hayes. He also came to know Lex McGee, Vincent DeRosa and Ken and Andy Fraser as a result of working at the plant. He spoke to Vincent DeRosa on one occasion when he was introduced by James Hayes and Mr. DeRosa told him that the rental price was the price.

The office space was at the main entrance to the Molson Plant in Area 13. About a year after first renting space RK Trucking went bankrupt and Mr. Kelly had another company called Karlea Trucking. [ 46 ] Mr. Kelly became friends with Bob DeRosa. He knew Lex, who did maintenance at the plant. He would see Bob in the guardhouse and then later at the Canadiana offices. He was aware that a water bottling operation was being started up. He moved some of the equipment through Moonstone and he arranged for equipment to be shipped from Sioux City, Iowa to the Molson Plant.

He also moved the coffee company equipment from Concord to Barrie. His work hours in the plant would be from 8:00 a.m. to 7:00 p.m. and sometimes on weekends. Mr. Kelly was aware that water bottling companies from Mississauga and Alberta were purchased and he helped with moving the equipment. He shipped coffee for the coffee company to Florida. [ 47 ] While he was working out of the Molson Plant he observed that a doorway would be bricked or a new wall had been built. He did not see this work being done but observed the completed work the next day. Mr.

Kelly testified there were no restrictions placed on him as to where he was to go in the Molson Plant. He had keys to the docks and to the main doors to get to his office space. It was his belief that as areas were rented out that locks were changed. [ 48 ] Persons renting space at the Molson Plant were given passes to be able to come and go. You had to check in at the guardhouse. After a while it was not really necessary to check in once they got to know you.

It was James Hayes on the gate during the day and Mike Dicicco at night. [ 49 ] He knew Cathy Underhill, who was a cleaner, and later drove Bob DeRosa around. He always saw Cathy with Bob. He saw Vincent DeRosa at the guardhouse or in the Canadiana room. [ 50 ] After the police raid he could not believe what had been going on in the two marihuana grow operations. He was given a tour by Bob and James after the police finished and they were allowed back into the building. He was in shock and had no idea this was going on at the same time he was renting space.

He no longer leased space in the Molson Plant after the police raid. He then rented office space at the Oro Centre. [ 51 ] Mr. Kelly later found a house at 17 Guest, which he mentioned to Victor Slobodian, a real estate broker who did work for Bob DeRosa. It was close to the Oro Centre. Mr. Kelly thought Bob might be interested in purchasing it and then renting it to him. Mr. Kelly was shown an agreement of purchase and sale between assignor Roger Kelly in trust and the signee Robert DeRosa in trust, Exhibit 54. He did not remember signing anything but it could have been something that Victor did up.

He did recognize the Residential Lease Agreement, Exhibit 55, signed by himself and Catherine Underhill on October 28, 2005. Bob had mentioned to Mr. Kelly that Cathy would be the one who was buying 17 Guest Road and he would be dealing with her. He made his rent cheques payable to Cathy Underhill. Bob gave him permission to park his trucks on land adjacent to 17 Guest Road that he believed Fercan owned. He ran his business out of this property and he and his family lived there about three years. [ 52 ] Mr.

Kelly was aware that the police raided 17 Guest Road about a year after he left and discovered a marihuana grow operation. It was not his grow operation. [ 53 ] Mr. Kelly believed that Bob DeRosa was the superintendent of the Molson Plant. He always saw him there. He never had

any discussions with Bob about the production of marihuana. [ 54 ] Mr. Kelly knew George Arnold and believed he was involved in Aurora Beverages at the Molson Plant. He saw Mr. Arnold there regularly and knew he had an office in the Canadiana Room. Mr. Kelly’s company transported some of the new equipment, including a plastic injection moulding machine, for the water bottling operation that was being set up in the Molson Plant. His company also shipped former Molson equipment that Moonstone Mechanical sold. [ 55 ] On one occasion the police came to the Molson Plant to check out one of Mr. Kelly’s trucks. Mr.

Kelly had a problem with one of his drivers who had been to the United States. The police brought in a police dog to sniff around the truck, however, no drugs were found. Mr. Kelly was present when fire trucks came to the Molson Plant because of some alarms that kept screwing up. (vi) Barrie Good Fish [ 56 ] In November 2001, Robert DeRosa advised Vincent DeRosa that he had a group of individuals who were interested in leasing the space containing the stainless steel fermentation tanks at the Molson Plant to grow fish. The company was called Barrie Good Fish Company.

Robert DeRosa provided Vincent DeRosa with an offer to lease that included a diagram of the space Barrie Good Fish intended to lease. The diagram did not include the second floor, where the living quarters of the growers was discovered. Vincent DeRosa testified he had no idea that the second floor space was part of the Barrie Good Fish lease. An offer to lease was purportedly signed by Mike Dicicco on November 22, 2001. The monthly rent was $17,000. There is conflicting evidence as to when the offer to lease was signed, which will be discussed later.

(1) Mike Dicicco [ 57 ] Mike Dicicco was one of the individuals convicted of possession for the purpose of trafficking in marihuana and production of marihuana in December 2004. He received a conditional sentence of two years less a day. [ 58 ] Mr. Dicicco, the only witness who had been directly involved with the two grow operations, testified he was first approached by Dan (Dolic), an individual he knew for approximately a year, and was asked if he wanted to work at the Molson’s Plant. Although the Crown asked Mr. Dicicco if Dan introduced him to somebody about the job, Mr.

Dicicco did not give an answer and the Crown did not pursue the question further. Vincent DeRosa testified that his brother, Robert, hired Mr. Dicicco. It is clear from Mr. Dicicco’s evidence that most of his dealings were with Robert DeRosa, who was also actively involved in the grow operations; although, the Crown never asked Mr. Dicicco about Robert DeRosa’s role and involvement in the two marihuana grow operations. [ 59 ] Mr.

Dicicco started working for Vicar Properties as a night security guard in the guardhouse and later his responsibilities included overseeing and maintaining the portable boilers that were brought into the Molson Plant to provide heat. Within a week of starting to work at the Molson Plant, Mr. Dicicco testified he was told by Dan about the planned marihuana grow operations and was asked if he wanted to be involved. He knew that Dan was involved in running several marihuana grow operations in different locations. [ 60 ] Mr. Dicicco had contact with all of the persons involved with the marihuana grow operations.

He knew Jeff Lawson, who was a friend of Dan’s and was involved in the grow operations. Jeff Lawson, according to Mr. Dicicco, had a girl working for him in the Canadiana Room where Bob DeRosa had an office. He knew Lex McGee, who worked for Vicar as a maintenance man and electrician. He observed the grow operations being set up in stages by two or three persons. He saw the lights and transformers being installed in both grow operations. They would set up one or two tanks initially and then set up another one. He also observed the grow operation in the Pallet Company space being set up. Mr.

Dicicco also observed a block wall being built between the transportation/warehouse area and the Pallet space. He saw four or five guys building it and it only took a couple of days. The materials were brought in during the night. [ 61 ] He knew Bob DeRosa, who he described as a “barracuda” and not a very pleasant person. Mr. Dicicco did not like Bob very much as Bob was “all for himself.” Despite his expressed dislike for Robert DeRosa, Mr. Dicicco signed a rental application for Bob DeRosa and his family at 12 Raydonhurst Crescent, Barrie, Ontario.

He did this at Bob’s request because of Bob’s lack of a credit rating. He testified that Bob DeRosa would visit him in the old Molson beer store where he stayed. Cathy Underhill would also come and clean the old beer store for him. [ 62 ] Mr. Dicicco was aware of the coffee company that roasted coffee beans, put them in cans and then sold the finished product. When the coffee was being roasted you could smell the coffee all over the plant and even outside the plant.

There was a water bottling company that was being set up and “it was very close to happening” although it never got to be fully operational while he was at the Molson Plant. [ 63 ] Mr. Dicicco was paid approximately $15,000 a month to act as the person who provided food, cigarettes, beverages and supplies to the marihuana grow workers. He also ensured that those involved in the grow operations had access into the Molson Plant when he worked in the guardhouse during the evening hours.

He had five parking passes, which he provided to Dan, Jeff Lawson and the “Preacher” or anyone else connected to the grow operations that needed one. He would see the workers coming into the plant at night in vans. He was paid whenever a harvest of marihuana was sold and the Preacher or Dan or Jeff would bring him his pay ($15,000), the float for supplies ($15,000-$20,000) and the money for the rent to be paid by Barrie Good Fish Company ($17,000). [ 64 ] Mr. Dicicco was paid $500 a week by Vicar for his work as an engineer and as security in the guardhouse at night.

He received his Vicar cheques from Bob, however, Jeff Lawson and Bob made a deal; Jeff told Mr. Dicicco to cash these cheques and give the cash to Bob for Bob’s use. Mr. Dicicco lived in the old Molson beer store, which was just to the northeast of the Molson Plant. The Barrie Good Fish cheque registers, with cheque stubs attached, were found by police in this location. [ 65 ] Mike Dicicco testified that he became involved with Dave Nottrodt in Barrie Good Fish Company. According to Mr. Dicicco, this company was set up to try and grow fish in the stainless steel tanks in the fermentation area of the Molson Plant.

The Crown did not ask Mr. Dicicco how it was that he met Dave Nottrodt, who introduced him or how they entered into a partnership to raise fish in the stainless steel fermentation tanks at the Molson Plant. According to Mr. Dicicco, the partnership between himself and Dave

Nottrodt came about not long after Mr. Dicicco began working for Vicar. [ 66 ] Mr. Dicicco set up a bank account at a TD Bank for Barrie Good Fish and deposited the rent money each month and then wrote a cheque to Vicar. He was told to pay the rent by Dan and Bob. [ 67 ] When Mr. Dicicco was shown the business cards for Barrie Good Fish Company listing him as President and Dave Nottrodt as Vice-President, it was his evidence that he did not really recall those cards but they were likely made up by Dave.

He testified that Dave brought some fish to the Molson Plant and they cut one of the fermentation tanks and put them in. Dave was building a platform and different things inside the tank. [ 68 ] According to Mr. Dicicco, there were problems encountered in growing the fish, which he thought were called collapia [sic], but he did not know what those problems were. Dave was only involved for a few months and then he left as everything “fell apart.” When Dave was attempting to get the fish to grow in the fermentation tanks he stayed with Mr. Dicicco in the old Beer Store. [ 69 ] It was Mr.

Dicicco’s position that the marihuana grow operation in the Barrie Good Fish Company’s leased space was being set up at the same time that Dave Nottrodt was attempting to grow fish. There was a contamination problem with the grow operation involving spiders but they sprayed the plants and it killed them all.

(2) Dave Nottrodt [ 70 ] Dave Nottrodt was called as a witness by the Crown on December 5, 2012. It became very obvious early in his testimony that because of significant medical problems he did not have any memory of his involvement at the Molson Plant with the Barrie Good Fish Company. In fact, he later testified that everything he had testified to in questioning by Ms. Healey was based on information provided to him by his wife. He then advised that he had no memory of any of the evidence he had just given in court.

After considerable discussion with counsel it was agreed that I would not give any weight to the testimony of Mr. Nottrodt and I would disregard it. It was ultimately agreed that Mr. Nottrodt’s audio statement given on May 19, 2004 to D/Sgt. Milner and D/Sgt. Dziepak, of the O.P.P., would be filed as Exhibit 58, together with D/Sgt. Milner’s synopsis, Exhibit 29, which had been introduced earlier. It was agreed by all parties that I could consider Mr. Nottrodt’s statement for the truth of its contents in relation to the totality of the evidence on this issue. [ 71 ] The audio recording of Mr.

Nottrodt’s statement was played in court. It is 55 minutes in duration. I found D/Sgt. Milner’s synopsis of the statement, Exhibit 29, to be very accurate, with very little missed in terms of the questions asked or the answers provided. I find that Mr. Nottrodt, at the time of his giving this statement to the police, was quite capable of understanding the questions that D/Sgt. Milner asked him and that his answers were responsive. He was able to provide a great amount of detail in the answers he gave.

His memory was quite good despite suffering from medical conditions that included a growth in his brain, which caused him to have seizures, and pancreatitis. He showed the police a letter from the Ministry of Transportation advising that he could get his driver’s licence back. Further, his answers were consistent throughout, even where D/Sgt. Milner would ask the same question, framed a little differently, later in the interview. It is my view that he was being forthright in the answers he gave to D/Sgt. Milner.

There were no inconsistencies or discrepancies in the information he provided. [ 72 ] At one point he became upset because he thought the police were looking at him as being involved in the marihuana grow operations and he was concerned that his wife and kids could get shot by those involved in the grow operations. It is my view that his responses were appropriate to the manner in which the questions were being asked. He continued to provide information to the officers after it was explained that they just wanted to understand his involvement with Mike Dicicco. [ 73 ] Mr.

Nottrodt told the police he had been involved in raising fish for 7 years, since 1997. He raised tilapia fish and he had a tank of tilapia in his garage at his residence, which he sold to restaurants. He had been operating a greenhouse in Fonthill with an employee named Danny Sonyarchuk but his lease had run out. He told the police he had attended the Molson Plant as he was looking for a place to expand his greenhouse business. He saw a big sign advertising there was space for lease so he went to check it out.

He was introduced to Mike Dicicco who showed him the fermentation stainless steel tanks in the facility and suggested that he could use them to see if he could raise fish. The tanks were arranged 8 over 8 in an area 40 yards by 50 yards. [ 74 ] Mr. Nottrodt agreed to bring some of his fish to the Molson Plant and he ultimately put them in one of the tanks. He told the police that he picked the Barrie location because the Formosa water was ideal for growing fish, as it had high nutrient value. D/Sgt.

Milner asked whether Dave was also thinking of using the Barrie plant for his greenhouse operation and Dave said that he planned on using aquaponics to grow plants such as tomatoes, carrots, herbs, lettuces, cucumbers and zucchini. He was there at the plant for three or four months trying to get it to work, using pumps and stuff, but over a period of a week or two the fish started dying off. He spoke to his colleague in the United States and they both agreed that it was not going to work in the type of tanks that were available at the Molson Plant.

He remembered that he left the plant in the summer. [ 75 ] Dave told the officers that when he first arrived at the gate there was a big guy and a woman in her 40s or 50s with short hair. He told them he was looking to rent space to grow fish and he was directed to Mike Dicicco, who took him on a tour of the plant and showed him the tanks. Mike told Dave that he was willing to let Dave try it out to see if fish could grow in the tanks. Dave did not know Mike before going to the Molson Plant.

When he was first at the plant, he also met Bob, who was the property manager, but he did not have many dealings with him after he started to grow fish. Bob told Dave it was okay for him to use the tanks to grow fish. Mike never talked to Dave about paying rent or paying for the water because there was never a determination of how much space Dave would be using. Dave was trying to renovate the tanks to assist in the raising of the fish but he never finished. [ 76 ] Mike Dicicco said he would run the telephones and look after the fish company and he made out business cards for Dave and himself.

It was Mike’s idea to start the fish business. Mike told Dave that he was already importing and selling frozen fish and, if Dave was able to raise fish, Mike would sell Dave’s too. Dave told D/Sgt Milner that he never saw any frozen fish and as far as he knew no one was planning to raise fish before he arrived there. D/Sgt. Milner told him about business cards found at the Molson Plant for Barrie Good Fish Company and Dave told him this was the company name that Mike came up with. [ 77 ] Mr. Nottrodt described how the area that Mike showed him was a “sealed spot” and Mike told him no one could get into

the fermentation area and see what Dave was doing. Mr. Nottrodt had expressed concerns to Mike that someone might try to steal his ideas and prototypes. The entry to the fermentation area was locked at both ends and Dave was provided keys to get in by Mike. Mike told him that nobody was leasing the space where the tanks were and that he could use it for his experiments. Mr. Nottrodt thought he was up at the plant less than 10 times. When he was working at the plant he stayed with Mike in a little building where they used to sell beer.

When the fish died Dave told Mike he was leaving as he could not get them to grow. As far as Dave knew Mike was not going to continue trying to raise fish. [ 78 ] Mr. Nottrodt had never heard of Vincent DeRosa or Fercan and had never met Vincent DeRosa. [ 79 ] On one occasion, he and his wife and daughter went roller blading in the plant; they roller-bladed in the area of the tanks and about half of the building, which was huge. He did not observe anything that would have indicated there was a marihuana grow operation in the area he was working in.

He had been around “pot”, he knew what it smelled like and if it was there he believed he would have seen or smelled it. There were areas in the Molson pant that were locked and he could not get into them. He never witnessed the delivery of agricultural supplies or electrical equipment when he was working at the Molson Plant. It was Mr. Nottrodt’s position that if there were marihuana plants in the area he was working in then they were pretty good at fooling him. [ 80 ] He was aware of a company called Kumi that operated out of the plant. They were putting together parts for Honda or some Japanese company.

He heard about a water bottling plant but never saw anything. He was not aware of a coffee company. He did not think he ever heard of a company called National (sic) Pallet Company. He met Lex McGee, who was a maintenance guy at the plant. He saw transport trucks at the loading dock area of the plant.

(3) G renville Graham [5] [ 81 ] Grenville Graham worked in various capacities at the Molson Brewery, from 1972 to 2000; his last position was working as the supervisor of maintenance. After retiring from Molson’s he went to work for a former Molson’s employee, Ken Fraser, who had formed his own company, Moonstone Mechanical, which was doing work for Vicar, moving and selling the Molson’s equipment that had been left in the plant. He worked primarily in the Molson Plant from October 2001 to July 2002. In February 2003, after a falling out with Ken Fraser, Mr. Graham worked for Fercan on a contract basis.

He was introduced to Vincent and Bob DeRosa. He saw Bob just about every day he worked at the Molson Plant and saw Vincent DeRosa no more than once a week. [ 82 ] Mr. Graham was requested by Ken Fraser, in December 2001, to investigate the feasibility of converting the fermentation tanks in area IB of Exhibit 6 to grow fish. He was introduced to a young woman, Tracey, who operated a fish farm in Elmvale. He was also introduced to another young man called Jerry, who was working with her.

He mainly spoke to Tracey and obtained information as to what she hoped to do so he could develop what needed to be done to the tanks. Ken Fraser introduced him to these two people. He drew up a sketch, which provided for removing part of the top of the fermenters and putting in ladders and a catwalk to give access to the inside of the tank to clean and feed the fish. He gave the sketch to Ken. It was going to be an expensive undertaking and Mr. Graham described what had to be done and that it would take a couple of weeks to convert each tank. He thought it would cost about $10,000 to convert one tank.

He was asked by Ken to prepare this on December 3, 2001. [ 83 ] He was originally told by Ken and later, when he worked for Fercan, he was told by Lex that the fermentation area was off limits because they were growing fish and the human body would contaminate the fish. He did not know anything about growing fish so he assumed they were telling him the truth. He never saw whether the work he prepared was done to the fermentation tanks to grow fish as he was not allowed in that area.

It was only after the police raid that he saw that none of the work he suggested for fish farming had been done to the tanks. [ 84 ] On one occasion he was outside and saw a person outside by a door leading into the fermentation area. When this person saw Mr. Graham, he immediately went inside the building. [ 85 ] Mr. Graham never heard the name Barrie Good Fish Company. He did not believe he heard the name Dave Nottrodt, nor was he introduced to anyone by that name. He met someone named Mike, who lived in the old Beer Store, but he was never told what his role was at the Molson Plant or saw what he did.

When he was working for Fercan in February 2003, he observed that the entrances to the fermenting cellars were blocked off so there was no access to the upper and lower areas. [ 86 ] Mr. Graham was in the Molson Plant from 2001 to July 2002 and then from February 2003 when he started working for Fercan until the raid by the police in January 2004. He never observed anything that caused him to suspect there was a marihuana grow operation in the fermentation tank area.

(4) Andy Fraser [6] [ 87 ] Andy Fraser started working in 1998 for Moonstone Mechanical, a company started in 1995 by his father, Ken Fraser. At the time of testifying he held the position of General Manager in Moonstone and in 2013 he was assuming a part ownership in the company. Prior to working for Moonstone, he worked for Molson Brewery, as did his father. His father worked for Molson’s for more than 25 years.

Moonstone employed 15 full-time employees when Moonstone worked for Vicar and had employed as many as 50 or 60 employees depending on the contract. [ 88 ] Grenville Graham worked for Moonstone Mechanical starting in late 2001 for approximately a year and a half. He was involved in the removal of equipment from the Molson Plant. Moonstone Mechanical was initially involved in determining the value of the equipment that Molson’s Brewery intended to include in the sale of the property to Vicar.

After the sale, Moonstone was involved in the sale and removal of equipment from the Molson’s Plant. [ 89 ] While he worked at the Molson Plant selling and installing equipment he heard about a company called Barrie Good Fish Company. Once Barrie Good Fish leased space he was not permitted to enter the area of the fermentation tanks. The person who he believed was the manager of Barrie Good Fish was Mike; they called him the “chief”. It was his understanding that this company was growing fish in the fermentation tanks. Mr. Fraser testified that he observed a truck connected to Barrie Good Fish come to the Molson

Plant every day. [ 90 ] There was a point when Mike, the “chief”, told everyone that they could not go into the Barrie Good Fish space because of a contamination problem. He was not given any instructions concerning Barrie Good Fish by Vincent DeRosa. He was told by a gentleman who said he worked for Coldwater Fish Farm that they were called to the Molson’s Plant. He also spoke to Tracey Belanger (married name is Pickering), who he attended high school with, and she told him that she worked for Barrie Good Fish Company. Both Tracey and Mike talked to him about the contamination problem.

Tracey worked out of the Canadiana Room where she had a desk. [ 91 ] He observed doors between the aging cellars and the fermentation area being blocked in. This did not raise any suspicions in his mind about something illegal going on in the fermentation area as he believed this was to prevent the contamination problem. He was not aware of the date that Barrie Good Fish started their lease. When Fercan first took possession of the Molson Plant Mr. Fraser testified he was able to walk around the fermentation area but after the doors were locked he no longer had access.

He never had any discussion with Vincent DeRosa about Barrie Good Fish. [ 92 ] He was aware that Grenville Graham drew up a plan to see how the fermentation tanks could be used to farm fish. He saw the drawings when they were completed. Mr. Fraser understood that Mr. Graham drew up plans for an aeration system to grow fish. He believed it involved the installation of pipes and cutting holes in the tanks. Mr. Graham would estimate hours and materials and then it would be given to Moonstone, through either Mr. Fraser or his father, to prepare a cost quotation.

To his knowledge Moonstone never formally submitted any plans to convert the tanks to grow fish. Mr. Fraser did not know who the plan drawn up by Mr. Graham was done for. It was his belief that Mr. Graham showed his father the plans. He did not know what became of these drawings.

(5) Dirk Lange and Daniel Pitcher [ 93 ] Dirk Lange and Dan Pitcher were involved in a company called D & D Enterprises. In October 2001, they were hired by Vincent DeRosa and Vicar to decommission the large steam boilers at the Molson Plant and replace them with a smaller portable steam plant, which would be more efficient and less costly. They were introduced to Mike Dicicco, who was a fourth class stationary engineer, and they trained him to operate the portable heat system. [ 94 ] According to Dirk Lange, Vincent DeRosa took them on a tour of the plant.

When they were in the fermentation area, they were shown the stainless steel tanks and there was a discussion of how those tanks could be cleaned to be able to raise fish. He and Dan suggested that the tanks be cleaned by pressure washing them. During the tour they came to an area by the bottling area that had double doors that were locked with a chain. Mr. DeRosa told them the area behind the doors was rented. They were told to concentrate their efforts in the boiler room and fermentation and filtration areas of the plant. Mr.

Lange indicated that it was difficult to recall details of meetings and conversations because they occurred so long ago. He did not recall the name Barrie Good Fish being mentioned. Mr. Lange did not believe they had any contact with Bob DeRosa, who basically stayed in the guardhouse. He believed they were at the Molson’s Plant until March 2002. [ 95 ] Mr. Lange agreed their company was hired as part of the start-up of this new operation. Mr.

Lange was not introduced to Dave Nottrodt or to a person from the University of Guelph who were involved in assessing the tanks for the purpose of growing fish. [ 96 ] Dan Pitcher worked for many years as a first class engineer. He agreed that he and Dirk Lange were hired by Vicar to initially look into the starting up of a water bottling plant. They first met with Vincent DeRosa and his brother, Bob. They were shown around the Molson Plant. As things progressed their company was also asked to look into replacing the old steam boilers. A portable unit was rented on a tractor trailer.

They oversaw the installation and operation of the new portable boiler system. He met a native Canadian who said he was an engineer, but Mr. Pitcher did not believe he was an engineer because he asked questions an engineer would know the answers to. [ 97 ] Mr. Pitcher also indicated that because of the passage of time his memory of conversations and events was limited. His memory was much clearer when he provided his statement to the police in February 2004. There was discussion about growing fish in the stainless steel fermentation tanks.

Bob DeRosa told Dan and Dirk that they were looking into starting a fish hatchery. There was discussion about the cleaning of the tanks to make sure they were appropriate to breed fish in. He thought those discussions were likely with Vincent. He never heard the name Barrie Good Fish. (vii) Ontario Pallet [ 98 ] Robert DeRosa advised Vincent DeRosa shortly after the purchase of the Molson Plant that he had a pallet company, Ontario Pallet, that wanted to lease space in the southeast corner of the building.

Vincent DeRosa testified that the area Ontario Pallet wanted to lease did not interfere with his plans for Aurora Beverages, as it was a self-contained area. The lease, Exhibit 40, was signed on October 23, 2001, by Brian McIntyre, as President of 1477990 Ontario Inc. (Ontario Pallet). The lease commenced on November 1, 2001. Vincent DeRosa testified he did not meet Brian McIntyre and would have signed the lease in his office. The leased area was approximately 30,000 square feet. The monthly rent was $12,500.

Ontario Pallet provided a security deposit and paid the monthly rent in a timely fashion. [ 99 ] No witnesses connected to the Ontario Pallet company were called to give evidence. No information was provided by any witness as to Mr. McIntyre’s connection to Dan Dolic or the marihuana grow operation that was set up in the space leased by Ontario Pallet. No evidence was led as to Mr. McIntyre’s relationship with Robert DeRosa. [ 100 ] Mr. Graham became aware that a pallet company had leased space in the southeast corner of the Molson Plant, in Area 7B on Exhibit 6.

He used to eat his lunch with some of the truckers at the southeast corner of the bottle shop. He used to joke during lunch that they did not see many pallets coming out of Ontario Pallet. He observed a couple of guys with big pick-up trucks that came and went into the Ontario Pallet space but he never spoke to them. [ 101 ] He did not observe any changes to doors or openings when he was working for Moonstone up until July 2002. Later, when he was working for Fercan after February 2003, he did notice changes to both the fermenting areas and the transportation area where the

pallet company leased space. Lex McGee told him those areas were off limits. Lex would tell him if he needed anything from those restricted areas, for example, when he was doing piping in the bottle shop area he knew there was extra pipe in the fermentation area, he would just ask Lex and Lex would get it. If Mr.

Graham needed any other materials for his work he went to James Hayes to have it ordered and brought to the plant. (viii) National Roasters [ 102 ] Vincent DeRosa purchased a company called Multi Brands Food Corporation in 1993 or 1994, which at the time of the purchase of the Molson Plant was operated at a property in Concord, Ontario. This was a coffee roasting facility and a distributor of a number of different food products. A decision was made by Mr. DeRosa to sell the Concord building and move Multi Brands Food to the Molson Plant.

After the company was moved to the Molson Plant it was not involved in anything but the roasting, packaging and selling of coffee under the brand name of Prime Coffee. The company name was changed to National Roasters by George Arnold after it was moved to the Molson Plant. [ 103 ] Prior to the purchase of the Molson Plant, Vincent DeRosa testified that he sold Multi Brands Food Corporation to his brother, Nicola DeRosa, for a very nominal amount. National Roasters occupied 20,000 – 25,000 square feet of space in the Molson Plant.

National Roasters paid rent of approximately $7,000 per month. [ 104 ] Roger Kelly testified that his company, RK Trucking, moved the National Roaster’s coffee equipment from Concord to Barrie. Andy Fraser testified that Moonstone Mechanical was involved in the re-installation of the coffee equipment that had been moved from the Concord facility to the Molson Plant. He had attended the Concord building to view the equipment. It took approximately a couple of months to set up the equipment, including the coffee roaster as well as a packaging system. It required four employees from Moonstone to complete the work.

National Roasters was set up in Area 14 of Exhibit 6. Mr. Arnold testified that when he first arrived at the Molson Plant there were multiple truck loads of coffee that had been produced in Concord that were vacuum packed and sitting on pallets. [ 105 ] One of George Arnold’s responsibilities was to try and sell the coffee that was already packaged for sale. He testified he met with representatives from Giant Tiger and they agreed to sell the Prime Coffee line in their stores.

Roger Kelly testified his company was involved in shipping coffee to Florida. [ 106 ] Numerous witnesses testified they saw and smelled coffee being roasted by National Roasters after the roasters and packaging line were installed and up and running. There was a large amount of green coffee beans, which Mr. Arnold estimated at tens of thousands of pounds that had to be roasted as it was just sitting there in bags. Initially a small roaster was set up, according to George Arnold, to roast small amounts of coffee to meet demand. Later a large roaster was installed.

George Arnold testified that coffee was roasted and packaged once every week or two weeks and that National Roasters employed one or two employees to do the roasting and packaging of the coffee. Cathy Underhill testified that George (not Arnold) and Peta both worked for the coffee company. This was also supported by the evidence of Andy Fraser who looked to these two individuals for assistance when Moonstone was installing the National Roaster coffee equipment. Grenville Graham testified that after he was hired by Fercan, in February 2003, he worked on the coffee line.

Cathy Underhill testified that she also worked on the coffee line. George Arnold described a situation where a fire broke out in the chimney of National Roasters and the Barrie Fire Department attended to ensure there were no further problems. [ 107 ] It was the evidence of Grenville Graham and George Arnold that there was no strong odour of coffee being roasted inside the plant because of the chimney that exited the roof. [ 108 ] It was Mr.

Arnold’s evidence that when it was decided to roast the green coffee beans; Nicola DeRosa was at the plant assisting with formulating a blend between the various coffee beans. Mr. Arnold was not really aware of what Nicola DeRosa’s position with National Roasters was. It was Ms. Underhill’s evidence that it was her understanding Nicola DeRosa was in charge of the coffee company in Concord. When it was moved to the Molson Plant, Nicola initially was involved in the set up and afterwards he did not come very often. Mr.

Arnold’s focus was to market and sell the overstock of coffee that he ultimately sold to Giant Tiger. Once that was done his focus shifted to his main responsibility, which was the setting up of Aurora Beverages. [ 109 ] Mr. Arnold was close to signing an agreement with Vitality Food Corporation to do some custom roasting for a liquid coffee concentrate that would be sold to coffee machines, casinos and other food services. However, after the police raid, Vitality Food was no longer interested in pursuing any agreement with National Roasters. [ 110 ] Mr.

Arnold testified that National Roasters, after the police raid, was not operational very often as there was a price war occurring in the coffee business and Prime Coffee was not a national brand. [ 111 ] The Crown pointed to a number of empty Prime Coffee tins that were found in the areas leased by those involved in the two marihuana grow operations. It is the Crown’s position that the discovery of these coffee cans in the growers leased space demonstrated their unrestricted access throughout the building.

In my view, the discovery of these coffee tins more likely demonstrated that because the growers were living in the Molson Plant, as well as individuals like Lex McGee and Mike Dicicco, who also lived in the plant or the old Beer Store and were involved in assisting with the grow-ops, they had easy access to the Prime Coffee inventory at night when no one else was around and they helped themselves to it.

Further, one of Mike Dicicco’s responsibilities was to provide food supplies for the growers who were living in the plant, although he testified he did not see any Prime Coffee cans in the Barrie Good Fish or Ontario Pallet leased spaces. (ix) Aurora Beverages [ 112 ] One of the reasons Vincent DeRosa gave for purchasing the Molson Plant was to start a water bottling operation due to the existence of the Formosa spring, which he determined was an excellent source of water, prior to purchasing the property. Mr.

DeRosa testified that Gartner Lee, an engineering company that provided environmental consultation services, was retained to do an assessment of the water quality of the Formosa Spring and to make an application for the necessary permits from the Ministry of the Environment to draw water from the spring. This permit was obtained in 2002 or 2003. Mr. DeRosa also retained Moonstone Mechanical to investigate

whether any of the existing Molson equipment could be adapted or converted to bottle water. [ 113 ] Andy Fraser testified he knew Steve Usher, of Gartner Lee, was investigating the water at the Molson Plant and making an application for a permit for drawing water from the well. It was Mr. Fraser’s belief that the permit was ultimately granted after a lengthy period of time. Moonstone Mechanical was also involved in the purchase of new equipment, which they installed in the Molson Plant for the Aurora Beverages water bottling operation.

A number of the existing pieces of Molson equipment were adapted and converted for use on the water bottling line. [ 114 ] Mr. Fraser’s company was also involved in handling the maintenance of the Echo Springs water bottling facility in Mississauga that Mr. DeRosa was looking to purchase. They also extracted equipment from the Echo Springs facility in High River, Alberta, which was brought back to the Molson Plant and installed. Moonstone Mechanical had as many as 15 employees working on the Aurora Beverages water bottling operation.

Andy Fraser testified Moonstone Mechanical was paid close to $1 million over a two year period for the work done for Aurora Beverages. Grenville Graham testified he supervised a lot of the electrical work that was done on the bottling line. He also was involved in converting all of the high voltage (600 volt) lighting in the bottle shop area and in the hallways. When Molson’s operated the plant, the lights were on 24 hours a day, so Mr.

Graham installed switches to turn the lights on and off. [ 115 ] The area in the Molson Plant where Aurora Beverages was being set up was in the Warehouse and Bottle Shop Areas of Exhibit 6. Aurora Beverages leased 270,000 square feet of the Molson Plant and paid $90,000 a month. The Crown did not allege that this money was not paid to Fercan by Aurora Beverages.

The original rent was based on $4.00 per square foot but this amount was to be increased in 2009 to $5.00 per square foot. [ 116 ] George Arnold was actively involved in overseeing the installation of equipment for Aurora Beverages and getting the water bottling line up and running. He was being paid $100,000 a year to get Aurora Beverages operational and then arrange for the marketing and sale of the water that was bottled. Mr.

DeRosa testified he paid between $3.5 to $4.5 million in the conversion and installation of existing Molson equipment, the purchase and installation of Echo Springs’ equipment and the purchase and installation of new equipment for Aurora Beverages. [ 117 ] Roger Kelly testified he knew George Arnold as the person who was in charge of setting up the water bottling operation in the Molson Plant. Mr. Kelly saw Mr. Arnold at the Molson Plant on a daily basis. Mr. Arnold had an office in the Canadiana Room. Mr.

Kelly brought new equipment from Sioux Falls, Iowa, and from Mississauga, which included a plastic injection moulding machine, to the Molson Plant for the water bottling operation. [ 118 ] George Arnold testified that Vincent DeRosa attended the Molson Plant on most Saturdays and they would meet, either in the Canadiana Room or in the plant where the water bottling operation was being set up, to discuss its progress.

Andy Fraser, who was in the Molson Plant almost daily prior to the police raid and after, testified that he saw Vincent DeRosa on the floor of the plant when the bottling operation was being installed and set up. This was also confirmed by Cathy Underhill who testified she saw Vincent DeRosa at the Molson Plant when they were setting up the water bottling operation. [ 119 ] I do not accept the Crown’s submission that very little if any work was done setting up Aurora Beverages prior to the police raid in January 2004.

I find that there was a significant amount of evidence supporting Vincent DeRosa’s assertion that one of the reasons he purchased the Molson Plant was to set up a water bottling operation utilizing the existing Formosa Springs Well, which was an excellent water source. (

e) The Sale of the Molson Chattels [ 120 ] Vincent DeRosa testified that prior to the purchase of the Molson Plant he retained Moonstone Mechanical to determine the resale value of the equipment Molson’s Brewery was leaving in the plant. Further, he testified that Moonstone was involved in determining if any of the Molson chattels could be converted or altered and be used in the water bottling operation he planned to set up and operate. He was advised that the resale value of the Molson equipment was in the range of $5 to $10 million. [ 121 ] The evidence of Andy Fraser corroborates the evidence of Vincent DeRosa. Exhibit 52,

Schedule “B” to the Purchase and Sale, is a comprehensive listing of the major components left by Molson’s Brewery at the Molson’s Plant. It was Moonstone’s initial task to verify their existence and provide a valuation. Moonstone had the sole rights to the extraction of the equipment and they received 10% for every piece of equipment sold. Exhibit 53 is an example of the descriptions that were prepared for the equipment at the Molson’s Plant that was to be sold. Mr.

Fraser wrote these descriptions. [ 122 ] When Moonstone sold a piece of equipment they would send an offer to purchase to GAB Capital Corp. (hereafter GAB), which was Vincent DeRosa’s company that owned the chattels and received payment. GAB would send an invoice and Moonstone would submit a cheque less 10%. Exhibit 82 is a sampling of the types of cheques and documents relating to the sale of the Molson’s equipment. Exhibit 82 represents about $1.2 million in sales of equipment, which is only a portion of the money made through the sale of the Molson’s chattels.

From these documents it appears that the first piece of equipment was sold on October 30, 2001, although there might have been earlier sales. [ 123 ] It was Mr. Fraser’s evidence that a low estimate of the equipment sold would be $4 million, although he believed the actual value would be higher. Moonstone would have received $400,000 commission on those sales. Vincent DeRosa testified that approximately $6 million, net of expenses, was made by GAB through the sale of the Molson chattels. This took approximately five or six years from the closing date in October 2001.

Hundreds of potential customers came to the Molson Plant to view the equipment that was for sale. There were no restrictions placed on Mr. Fraser as to where he could take their potential customers, although they did not take them into leased areas where there were tenants. Equipment was sold before and after the police raid in January 2004. [ 124 ] Mr. Fraser was at the Molson Plant daily after the closing in October 2001. At a minimum he was at the plant five days a week and at times he was there seven days a week. He would work eight to fifteen or eighteen hours a day.

He had complete access to the areas of the plant. Moonstone had originally been asked to sell the stainless steel fermentation tanks; however, they were not able to sell them because they were horizontal tanks which were no longer being used in the brewing industry. At some point doors and

windows were blocked in between the aging cellars and the fermentation area because, from what Mr. Fraser was told, there was a sanitation issue concerning the fish that were being raised in the fermentation tanks. Once the fermentation area was leased to Barrie Good Fish, Mr. Fraser no longer went into that area. [ 125 ] Exhibit 83 represents some of the invoices provided to Aurora Beverages and Vicar for work done by Moonstone for the installation or extraction of equipment. (

f) Evidence of Catherine Underhill [ 126 ] In October 2001, Cathy Underhill was raising cattle on a farm in Oro-Medonte living with a friend. She was a registered nurse by profession. James Hayes, who she knew from raising cattle, contacted her and he asked her if she wanted a job cleaning offices at the Molson Plant. Initially she cleaned the guardhouse during the day, which is where James Hayes sat as she understood he managed the guardhouse. James was also responsible for ordering supplies as he was very knowledgeable of the Barrie area.

A short time after she started, she first met Mike Dicicco as he was manning the guardhouse at night. She also met Robert DeRosa, who was the property manager of the Molson Plant and other properties owned by Vicar/Fercan in the Barrie area. She knew that Bob DeRosa was responsible for assisting in setting up the water bottling operation. [ 127 ] For about a month she was paid in cash, and thereafter was put on the payroll of Vicar and paid by cheque. Initially she was paid $2,000 a month and later her salary was $32,000 a year.

She cleaned and painted the old Beer Store where Mike Dicicco worked and cleaned up the offices in the Canadiana Room. [ 128 ] After a short while she began to work in a capacity as Bob DeRosa’s assistant and driver. Bob DeRosa gave her a gift of $50,000, which allowed her to purchase the farm property that she lived on in Waubaushene. Initially Bob used the guardhouse as his office but he later moved to the Canadiana Room. Cathy Underhill testified that when Bob had an office in the guardhouse he met there with Jeff (Lawson). [ 129 ] Ms.

Underhill was familiar with a number of the workers at the Pallet Company and she observed one of them working in the guardhouse at night instead of Mr. Dicicco. She observed Rob (Bleich), Rayne (Sauve) and Jeff (Lawson or DaSilva) from the pallet company coming in and out of the plant. Ms. Underhill testified she recognized Robert Bleich, Rayne Sauve, Scott Walker, Craig Walker and Michael Dicicco, the five persons in a Toronto Sun

article and photo, Exhibit 60, as working for the Pallet Company. [ 130 ] Vincent DeRosa visited the Molson Plant on Saturdays and she first met him during the first month of her employment. [ 131 ] She testified that despite being at the Molson Plant daily, she had no idea there were two marihuana grow operations there. Further, she had no knowledge that any of the individuals she knew from the Ontario Pallet Company were, in fact, working in a marihuana grow operation. Ms.

Underhill described that in December 2003 there was a Christmas party held in the Canadiana Room attended by employees of Fercan, tenants, inspectors from the City of Barrie, people from the Fire Department and from hydro. A few weeks later, the police executed a search warrant and discovered two very large and sophisticated marihuana grow-ops just across the hall from where the Christmas party was held. (

g) The Grow Operations (

i) The Molson Plant, 1 Big Bay Point Road [ 132 ] On January 9, 2004, two large sophisticated marihuana grow operations were discovered at 1 Big Bay Point Road, in the former Molson Plant. Detective Constable Bednarczyk, who was the continuity exhibits officer during the execution of the search warrant and the dismantling of the grow operations, provided evidence of the physical aspects of the two marihuana grow operations and the extensive modifications to the Molson Plant that were discovered after the execution of the search warrant.

Exhibit 6 is a diagram of the layout of the plant showing the areas used by the two grow operations. Exhibit 7 is a bound volume of photographs, used by D.C. Bednarczyk when he testified at the sentencing hearing in 2004 (See also the photographs in Exhibit 30). He also described what was depicted in a number of videos (Exhibit 8 and 9) taken after the discovery of the grow-ops. D.C. Bednarczyk’s involvement was limited to Project Plants in 2004.

He was not involved in any of the subsequent police investigations (Project 3D or Project Birmingham). [ 133 ] Access to the two marihuana grow operations was controlled by two locked exterior doors on the south side of the Molson Plant. Any entrances or doorways within the plant, which led into the areas where the two grow-ops were located, were locked or bricked in with cement blocks or dry walled to prevent anyone working inside the plant from gaining access.

Only those individuals involved in the grow-ops with keys were able to access these areas through the exterior doors. [ 134 ] One of the grow operations was located in the space rented by Barrie Good Fish, identified on Exhibit 6 as Area 1A, Area 1B and Area 3. The second grow operation was located in space rented by Ontario Pallet Company (1477990 Ontario Inc.), identified on Exhibit 6 as Area 4A, Area 4B, Area 5, Area 6, and Area 7B.

Those involved with the grow operations had constructed two living quarters for the growers in each space so the operation could be monitored around the clock. [ 135 ] Larry Farr is the owner of Farr Masonry Ltd. In 2001 he was paid to do some work at the Molson Plant. Someone met him at the guard house, took him into the plant and showed him the openings to be filled in. He filled in some windows and a man door. Exhibit 64 is his invoice dated October 29, 2001. The work would have been done a day or two before or on the date of the invoice.

The invoice indicates the work was done for 1477990 Ontario Inc. in the amount of $705.13. He was paid in cash by the person who showed him where to do the work. He was unable to give a description of this person. Mr. Farr did the work somewhere between Area 7B and the warehouse on Exhibit 6, but was unable to say exactly where he did the work. During oral submissions the Crown conceded this point. He assumed the blocks he used came from Simcoe Block but he was not positive. The person who brought him into the plant also talked to Mr.

Farr about building a wall from Area 7A through the middle of the warehouse and bottling area on Exhibit 6. Mr. Farr was not hired to build the wall that was discussed. [ 136 ] A cement block wall was constructed between the warehouse area and the area used by Ontario Pallet, although no

evidence was lead as to who did this work or who paid for its completion. Michael Dicicco, one of the individuals charged with being involved in the grow operations, testified the wall was built during the night by four or five guys and that equipment and materials were brought into the plant to do this work at night. He later changed his evidence to say the wall was built during the day. It is interesting to note that Mr. Dicicco worked as the night security in the guardhouse and he testified that during the day he slept. [ 137 ] D.C.

Bednarczyk testified that 342 invoices from Simcoe Building Centre/Simcoe Block were located in the guard house and seized. There was evidence that Robert DeRosa originally maintained an office in the guard house. Of the Simcoe Block invoices, only three referred to the name “Vince” and all of those related to the Oro Centre for stucco materials.

There was evidence led that extensive renovations were done to the outside of the Oro Centre after it was purchased by Vincent DeRosa. [ 138 ] Sophisticated sulfur/charcoal venting was installed in the roof to prevent the smell of vegetative marihuana leaking into the common areas of the plant. Water pipes and electrical wiring were installed and routed along the ceiling in the plant to provide water and electricity to the two grow areas. The growers obtained water for the Barrie Good Fish grow operation by running a waterline from the National Roasters area into an empty vat that was used as a reservoir.

The waterline then went from this vat up to the ceiling and was secreted in the rafters where it directed water to the Ontario Pallet space. Electrical cables were run from transformers, taken through the ceiling and hidden under flashing on the roof and then brought through the ceiling into the area of the Ontario Pallet grow operation.

It is my view, based on the video footage, that these modifications would have been difficult to observe by individuals who were unaware of the grow operations and would not have raised any suspicions. [ 139 ] It would have been obvious to anyone who gained entry into the areas of the two grow operations as to what type of activity was going on. It is my opinion those in charge of the grow operations did everything in their power to prevent anyone not involved from gaining access. Based on the evidence of D.C.

Bednarczyk, it is clear the scope of the two marihuana grow operations at 1 Big Bay Point was massive and highly sophisticated. The Crown has set out, in accordance with the evidence of D.C. Bednarczyk, the layout of the two grow operations and I do not intend to reproduce the detail here. [7] [ 140 ] Grow schedules, discovered in the two grow operations, established that for Ontario Pallet marihuana plants were growing as early as March 19, 2012 and for Barrie Good Fish as early as March 24, 2002.

Michael Dicicco testified the process of getting the grow operations up and running was done in stages; they would get one or two tanks operational at a time. Mr. Dicicco was not asked the names of the two or three individuals he testified set up the grow operations. In fact, very few questions were asked of Mr.

Dicicco concerning his involvement or the involvement of others in the marihuana grow operations. [ 141 ] I find the modifications to windows, doorways and the brick wall separating the warehouse area from Area 7B, which prevented access from the common areas of the Molson Plant to the grow operations, were completed in the months leading up to March 2012. The evidence of Mr. Dicicco, Roger Kelly, and Grenville Graham supports the inference that much of this work was completed at night.

Mike Dicicco was in the guardhouse at night acting as security and was recruited early on by Dan Dolic to be involved in the grow operations. [ 142 ] Mike Dicicco testif

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