S.C.C. No. 02756
NOVA SCOTIA COURT OF APPEAL
Clarke, C.J.N.S.; Freeman and Pugsley, JJ.A.
Cite as: R. v. Brogan, 1993 NSCA 149
BETWEEN:
THOMAS ROBERT BROGAN ) William P. Burchell
) for the Appellant
Appellant )
)
)
- and - )
)
)
HER MAJESTY THE QUEEN ) James C. Martin
) for the Respondent
Respondent )
)
)
)
) Appeal Heard:
) May 31, 1993
)
) Judgment Delivered:
) June 14, 1993
THE COURT: The appeal is dismissed, leave to appeal to the Crown is granted but the Crown's appeal is dismissed as per reasons for judgment of Pugsley, J.A.; Clarke, C.J.N.S. and Freeman, J.A., concurring.
PUGSLEY, J.A.:
The appellant appeals from his conviction on a charge that he did unlawfully have in his possession a narcotic to wit: cannabis marihuana, for the purpose of trafficking contrary to s. 4(2) of the Narcotic Control Act.
The appellant submits that a finding of guilt under s. 3(1) (ie. unlawful possession of a narcotic) should be substituted for the finding under s. 4(2). Both counsel agreed that, in view of the wording of the indictment, a finding of unlawful possession was an included offence to the charge under s. 4(2).
The Crown, by notice of cross-appeal, applies for leave to appeal, and if leave be granted, appeals the decision as to sentencing (six months in the Cape Breton Correctional Centre and one year probation on terms) and seeks an increased term of imprisonment.
ISSUES:
The appellant's submissions involve the consideration of three main issues:
(1) The trial judge erred in law in upholding the validity of two search warrants and, allowing into evidence, the documents, and articles obtained as a result of the exercise of those warrants.
(2) The trial judge erred in law in qualifying as an expert, and accepting the expert opinion of, Corporal Mark Pearson, of the R.C.M.P., with respect to cultivation, yield, trafficking, pricing and usage of marihuana.
(3) The trial judge erred in law when he drew a negative inference from the appellant's failure to give evidence.
FACTS:
On August 28, 1990, the Sydney Detachment of the R.C.M.P. applied for a search warrant pursuant to s. 487 of the Criminal Code to search the premises of the Nova Scotia Power Corporation, a Crown utility located in Sydney, Nova Scotia.
Constable Murphy's information to obtain the warrant set out the following grounds:
"(1) That investigation has confirmed that Thomas Brogan resides at civic address 15 Haley Street, North Sydney, Province of Nova Scotia.
(2) That on the 27th day of August, 1990, I was advised by Corporal Ross Jenkins, a member of the R.C.M.P., Sydney, Nova Scotia, that on the 24th day of August, 1990, he was contacted by Corporal Brian Oldford, a member of the R.C.M.P., Yarmouth, Nova Scotia. Corporal Oldford advised that on the 31st day of July, 1990, he was informed by a confidential source of proven, past reliability, that Thomas Brogan was growing marihuana plants by means of a hydroponic greenhouse which he set up at his residence. Corporal Oldford further advised that he was informed by the above-noted source that the source observed the hydroponic greenhouse with approximately 50 marihuana plants growing at 15 Haley Street, North Sydney, Nova Scotia.
(3) That I am informed through training courses and also through results of investigations conducted by other members of the R.C.M.P. that the cultivation of marihuana plants by means of a hydroponic greenhouse results in a significant increase in the electrical power consumption at the residence in which the greenhouse is being operated.
(4) That I verily believe that a search of the said premises will produce the articles described in this document thereby affording evidence supporting the offence of cultivation of marihuana."
The justice of the peace asked no questions, the warrant was granted, and it disclosed significant increased power bills for the six months ending August, 1990, as compared with the power bills for the previous six month period.
The information obtained from the Power Corporation, together with the grounds set out in the first warrant, were combined, and offered as reasonable and probable grounds for issuance of a second warrant to search the appellant's residence at 15 Haley Street, North Sydney. The justice asked no questions and the warrant was issued.
The search of the appellant's residence took place on August 28, 1990 by four members of the R.C.M.P. The appellant was not home at the time. Entry was gained through a rear sliding door that was not only unlocked but was open. A screen door was closed, but not locked. A rottweiler dog was chained in the back yard, but in such a manner that it was not a threat to anyone gaining entrance to the home.
An extensive and sophisticated hydroponic garden was found in the basement. It was not in operation. The technique employed utilized the latest technology.
A notebook was seized with items consistent with a marihuana cultivation operation. The notes were described as being "detailed".
A garbage bag containing 2,465.7 grams of marihuana or 5.28 pounds was located in the basement. Corporal Pearson gave the opinion that this would have a street value of approximately $2,112 and would provide a supply for 2 1/2 years for a user consuming five marihuana cigarettes per day. That would constitute the supply for a heavy user.
One hundred and forty-two point five grams of marihuana were found on benches in the basement and 84.3 grams were found on the floor.
Thirty-four marihuana stems with branches were also seized. They were all dead and according to the police it was impossible to determine when they had died. It was estimated by Corporal Pearson that these stems could produce five marihuana cigarettes a day or sufficient supply for 3.8 years for one person who was a heavy user. The police acknowledged, however, that it was difficult to determine what the plants would produce in the future or what they had produced in the past without actually seizing the bud.
There were no score sheets (notations kept by drug traffickers as to who they sold to, how much, etc.), no baggies, no cash, no scales, and no other paraphernalia often found in similar operations.
The trial judge accepted the qualifications of Corporal Mark Pearson as an expert and permitted him to give opinion evidence in the area of cultivation, yield value and the purposes which could be inferred from quantities of marihuana. The appellant did not give evidence. He was convicted pursuant to s. 4(2).
ISSUE NO. 1:
The appellant submits that, with respect to the first search warrant directed to the Power Corporation, the Crown failed to establish reasonable grounds that the items sought would afford evidence of the commission of the offence.
The Crown submits there was some evidence sufficient as a matter of law, and cites Re Church of Scientology (No. 6) (1987), 33 C.C.C. (3d) 449 in support.
The Crown, however, raises a preliminary point, namely that the appellant does not have the status to assert a s. 8 Charter infringement.
In R. v. Plant (1991), 116 A.R. 1, the police used a computer terminal and a password which the city utility company had given to the police, to determine that the appellant was using four times as much electricity as comparable sized homes in the area. The appellant submitted his s. 8 Charter rights had been violated because the computer search involved the use of confidential data.
The Court of Appeal held:
"The vendor city (or its electrical branch) is in no sense an agent or servant of its utilities customer. Still less is it the recipient of a confidence simply by selling electricity. Furthermore, the records of electric consumption are kept for the commercial purposes of the utility (and may be to prove that the building is not discriminatory). They are not kept for the customer's purposes."
The Ontario Court of Appeal in R. v. Pugliese (1992), 71 C.C.C. (3d) 295 considered a submission by the appellant, (who was convicted of possession of cocaine for the purpose of trafficking) who objected to evidence admitted by the trial judge, obtained under the authority of a search warrant. The evidence was obtained not from the appellant's apartment but rather from the premises of a tenant who had leased from the appellant.
On behalf of the court, Finlayson, J.A., in the course of dismissing the appeal, stated at p. 302:
"The true test of a protected constitutional right under s. 8 of the Charter is whether there is a reasonable expectation of privacy . . . the appellant must assert a personal privacy right . . . since this reasonable expectation of privacy is a Charter protected right, the burden of providing an evidentiary basis for any violation rests with the appellant . . . the appellant's target theory, that is, the theory that since he was the target of the search at McInnis's apartment he acquired a right under s. 8 of the Charter, has never been accepted in this jurisdiction and has been specifically rejected in the United States."
In my opinion, the appellant has no status to object to the information obtained from the Power Corporation by search warrant.
I agree with Crown counsel that the information to obtain the second search warrant identified, not only the type of narcotic (marihuana), but the nature of the marihuana (plant form), the manner and process by which the plants were being grown (hydroponic greenhouse) and that the informant had personally observed the plants in growing form at the appellant's home.
In considering the factors set forth by Sopinka, J. in R. v. Garofoli (1991), 60 C.C.C. (3d) 161, the degree of detail is specific, the source of knowledge is personal observation, and the police referred to the source as being one of "proven past reliability".
There was ample evidence, therefore, upon which the justice could determine that a search warrant should be issued.
ISSUES NO. 2 AND 3:
The appellant argued that Corporal Pearson's experience was generally limited, but in particular, was extremely limited with respect to marihuana cultivation and trafficking in Nova Scotia.
The curriculum vitae of Corporal Pearson reveals that he has been involved in drug enforcement for a period in excess of eight years, made over 275 marihuana seizures, has been involved in hundreds of marihuana investigations, including cultivation trafficking, importation and possession, purchased marihuana while acting in undercover capacity, lectured to police agencies in British Columbia, Saskatchewan and Florida, produced two training video tapes on marihuana cultivation and was the author of a number of articles that have been used inter alia as training reference manuals for the police college in Ottawa.
The Crown points out that the expertise of a police officer would not differ qualitatively "as a result of a particular province where narcotic traffickers, users, cultivators or importers are located" and that the Narcotic Control Act is a federal statute with the provisions of sections 4 and 6 not differing province by province.
There was, in my opinion, ample evidence to justify the decision of the trial judge to qualify Corporal Pearson.
The real issue in this case is whether the evidence obtained under the search warrant and the observations made in the appellant's home as illustrated by the photographs before us, are sufficient to justify a conviction for possession "for the purpose of trafficking".
Counsel points to the following evidence:
(1) The appellant had no previous criminal record.
(2) There was no evidence of any of the drug paraphernalia usually found in trafficking cases, namely packaging, documents, score sheets, cash, unexplained wealth, or association with drug traffickers.
(3) The back door was wide open and access was easily gained to the house - a circumstance that was acknowledged by Corporal Pearson as not only "unusual", but one that he had never seen before. While a dog was in the back yard, it was chained up and presented no threat to anyone who wished to gain access to the premises.
(4) The hydroponic garden was not in operation at the time of the seizure and while 34 stems had been found, they were all dead, and no inference should be taken from their ability to produce marihuana.
(5) The only narcotics seized amounted to 2,465.7 grams of marihuana in a garbage bag and approximately 210 grams on benches and on the floor. While this amount might provide something in excess of 2 1/2 years supply for one person, that was not inconsistent with possession alone, and did not establish beyond a reasonable doubt that the possession was for the purpose of trafficking.
The Crown directs the attention of this Court to the findings of the trial judge:
"There was a very elaborate hydroponic greenhouse operation located there, replete with high intensity lights, benches, planters, tubing, trays, ph adjusters, timers, pumps, and other assorted paraphernalia."
Corporal Pearson described the operation as a "fairly sophisticated technique relative to other operations he had investigated". The notebook seized in the premises disclosed "daily measurement of the ph, noted exposure to the light, the time of exposure, the change of exposure to 12 hours on and off . . . the adding of nutrients". Corporal Pearson concluded that he had never "seen notes as clear and detailed relating to an operation of a hydroponic greenhouse".
Corporal Pearson "had no doubt in his mind" at all that the cannabis was kept for the purpose of trafficking.
The trial judge continued:
"That is not an opinion that I can simply adopt as a legal consequence on that very important element of the offence, but I still certainly am entitled to look at the facts which support it, and his credentials which support his opinion, and it would appear that the strength of his belief and opinion was indeed well founded".
This Court may allow the appeal where it is of the opinion that the verdict "should be set aside on the ground that it is unreasonable or cannot be supported by the evidence" (s. 686(1)(a)(i) of the Code).
McIntyre, J. in Yebes v. The Queen (1988), 36 C.C.C. (3d) 417, stated at p. 430:
"The function of the Court of Appeal, under s. 613(1)(a)(i) of the Criminal Code, goes beyond merely finding that there is evidence to support a conviction. The court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the court must reexamine and to some extent reweigh and consider the effect of the evidence. This process will be the same whether the case is based on circumstantial or direct evidence."
Mr. Justice Twaddle of the Manitoba Court of Appeal in R. v. B.(J.N.) (1989), 48 C.C.C. (3d) 71 on behalf of the majority, commented at p. 78:
"Although the line between substituting our own view as to the proper verdict and reexamining, reweighing and reconsidering the effect of the evidence may in practice be a fine one, we will keep on the right side of it if we confine ourselves and our reevaluation to the question: were the facts such that no trier of fact, acting judicially, could reasonably have been satisfied of guilt beyond a reasonable doubt?
If there is evidence sufficient to inculpate the accused, we may take into account his failure to give evidence denying his involvement or explaining it."
This last comment is of particular relevance because the appellant in this case, submits that the learned trial judge wrongly drew a negative inference from the appellant's failure to testify.
The appellant refers to the following comments of the trial judge:
"Obviously the accused has the right to remain silent and cannot be compelled to testify and no negative inference can be drawn from that. But, there can be evidence of such persuasion led by the Crown that in the absence of an explanation emerging from the evidence, a conviction seems inevitable. Here, there was a theory proposed by the defence, but in looking at the evidence as objectively as I can and as I think I have to, there is really little evidence to support the proposition and no evidence, not sufficient evidence to create a reasonable doubt as to the guilt of the accused."
It is appropriate, however, to point out that the trial judge also stated:
"Referring to a publication, Canadian Charter of Rights by Tarnopolsky, the following section was adopted:
'The accused need only respond once. The Crown must present its evidence at an open trial. The accused is entitled to test and attack it. If it does not reach a certain standard, the accused is entitled to an acquittal. If it does reach that standard, then, and only then, is the accused required to respond or to stand convicted.'"
The trial judge referred to an article by Professor Ratushny, (The Canadian Charter of Rights and Freedoms, Beaudoin and Ratushny, (1982) at pp. 358-359), and his reference to the comments of Lamer, J. on behalf of the majority in Dubois v. R., [1985] 2 S.C.R. 350 at p. 357:
"In many ways, it is the principle of a "case to meet" which is the real underlying protection which the "non-compellability" rule seeks to promote. The important protection is not that the accused need not testify, but that the Crown must prove its case before there can be an expectation that he will respond, whether by testifying himself, or by calling other evidence. However, even where a "case to meet" has been presented, the burden of proof remains upon the Crown to the end."
Reading the decision of the trial judge as a whole, in my opinion, he was simply following the dictates of Irving, J. in R. v. Jenkins (1908), 14 C.C.C. 221 at p. 230:
"It is true that a man is not called upon to explain suspicious things, but there comes a time when, circumstantial evidence having enveloped a man in strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned."
"Traffic" is defined in s. 2 of the Narcotic Control Act as meaning:
"(a) to manufacture, sell, give, administer, transport, send deliver or distribute, or
(b) to offer to do anything referred to in paragraph (a)."
It is clear that it is not necessary for the Crown to prove a sale of the drug occurred, but a simple "giving" by the appellant to a third person is sufficient to come within the definition.
The trial judge focused on the size and sophistication of the operation, as well as the quantity of marihuana found to justify a conviction under s. 4(2).
I have reexamined the evidence, reweighed and considered the effect of the evidence, and have concluded that the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The trial judge made no reversible error in his assessment of the testimony of the witnesses and in reaching his conclusion as to the guilt of the appellant.
CROWN APPEAL FROM SENTENCE:
The appellant was born on October 13, 1952 and at the time of sentencing (July 9, 1992) was 39 years of age.
He attended Acadia University for four years and was enrolled in the Faculties of Engineering, Business Administration and Economics. He left Acadia two credits short of obtaining a degree.
The appellant joined the family fishing business after university. He in effect runs it "lock, stock and barrel". He buys fish and lobster locally and remarkets it in Nova Scotia and extra-provincially.
He never married and has no children.
He reported a net income of $26,000 annually, but was in no financial difficulty, with no major debts.
He began to use marihuana and hashish daily at the age of 17 but, for the last two years, he had only used drugs occasionally. He maintained that his drug use did not interfere with his job performance and that he did not use drugs at work.
He had no previous criminal record and was not a concern to the police department.
The trial judge in a thoughtful and detailed review of the relevant issues on sentencing made the following points:
(1) An offence of trafficking under the Narcotic Control Act is an extremely serious offence, but obviously can embrace a very wide range of possible criminal activity.
(2) There was a greenhouse operation of considerable sophistication.
(3) There was an "inescapable inference" that the possession was for more than personal use but the trial judge concluded that there was no commercial motive and that the fishing business was not a cover for a drug operation.
(4) The presentence report was a positive one.
In view of the quantity of drug, however, the trial judge concluded that a period of incarceration was appropriate. He stated that the sentence he imposed "is at the low end of the spectrum . . . I am going to couple it with a period of probation because I think there can be something to be gained by Mr. Brogan from assessment for drug use or abuse essentially as you will be coming out of the correctional centre presumably having been free of the use of it for at least some period of time."
Recognizing that this Court will only interfere if there is an error in principle or if the sentence is clearly inadequate, the Crown submits that the trial judge overlooked the need for deterrence, the degree of premeditation involved, as evidenced by the sophisticated greenhouse, and further that persons such as the appellant "are as instrumental in allowing such an insidious trade to continue as are any other types of traffickers" and further that "leniency in sentencing, would lend an air of respectability to the offence and send an improper message to the public".
In R. v. Ferguson (1988), 84 N.S.R. (2d) 255, Mr. Justice Jones on behalf of this Court stated at p. 256:
"This Court has repeatedly emphasized the need for deterrence in the case of drug traffickers. Persons who become involved in drug trafficking do so deliberately with full knowledge of the consequences. The general range of sentence, even for minor traffickers, has been between six and twelve months imprisonment. The primary element on sentencing for traffickers must be deterrence."
The following matters, in my opinion, are significant in considering the sentence imposed in this case:
(1) The absence of evidence indicating any commercial motive, or operation.
(2) The absence of evidence indicating any distribution to young people.
(3) The absence of any previous criminal record and the positive presentence report.
(4) The "soft" drug involved.
The stigma of a conviction under s. 4(2) constitutes a substantial badge of dishonour. The imposition of six months incarceration, together with one year probation on terms, on an individual theretofore respected, with no previous record, living in a small community, but carrying on business extra-provincially, satisfies, in my opinion, the appropriate sentencing requisites, including deterrence.
In my opinion, the sentence was adequate.
I would dismiss the appeal of the appellant, grant leave to the Crown but dismiss the Crown's appeal.
J.A.
Concurred in:
Clarke, C.J.N.S.
Freeman, J.A.
S.C.C. No. 02756
NOVA SCOTIA COURT OF APPEAL
BETWEEN: )
)
THOMAS ROBERT BROGAN )
)
Appellant ) ) REASONS FOR
- and - ) JUDGMENT BY:
)
HER MAJESTY THE QUEEN ) PUGSLEY, J.A.
)
Respondent )