R. v. Lane

R. v. Lane Court Supreme Court Date 2007-02-22 Citation 2007 NSSC 112 Docket CRH 268718 Judge/Registrar/Adjudicator Robertson, M. Heather (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: R. v. Lane, 2007 NSSC 112 Date: 20070222 Docket: CRH 268718 Registry: Halifax Between: Her Majesty The Queen v. Basil Richard Lane Judge: The Honourable Justice M. Heather Robertson Heard: February 20, 21 and 22, 2007 in Halifax, Nova Scotia Written Decision: April 12, 2007 (Orally: February 22, 2007) Counsel: Susan Y. Bour, for the Crown Michael Taylor, for the defendant Robertson, J. (Orally) [1] Basil Richard Lane resides at a secluded property located at 21 Doyle Street in Bedford, Nova Scotia. Details of the exterior of this building cannot be fully observed from beyond the perimeter of this property. On December 15, 2005, the Halifax Regional Municipality Police executed two search warrants on this property. The first was a general warrant under s. 487 of the Criminal Code under which they searched the perimeter of the property and found paraphernalia consistent with information they had received that a grow operation of cannabis (marihuana) was being conducted on the property. [2] Later on that day, police officers executed a search warrant of Mr. Lane’s premises pursuant to s. 11 of the Controlled Drugs and Substances Act and found a marihuana grow operation (147 plants) in the basement of this residence. [3] In an earlier ruling, I found that the search of this property was an illegal and a warrantless search that contravened s. 8 and s. 24(2) of the Charter of Rights and Freedoms. [4] Mr. Basil Richard Lane was charged with offences under the Controlled Drugs and Substances Act (CDSA). The charges are: 1. THAT on or about the 15th day of December 2005, at or near Halifax, Regional Municipality of Halifax, Province of Nova Scotia, he did unlawfully have in his possession, for the purpose of trafficking, not in excess of three kilograms, Cannabis (marihuana), a substance included in Schedule II of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 5(2) of the said Act; 2. AND FURTHER THAT on or about the 15th day of December 2005, at or near Halifax, Regional Municipality of Halifax, Province of Nova Scotia, he did unlawfully produce Cannabis (marihuana), a substance included in Schedule II of the Controlled Drugs and Susbstances (sic) Act, s.c. 1996, c. 19, and did thereby commit an offence contrary to Section 7(1) of the said Act; [5] This is my decision with respect to the trial of Mr. Lane on these charges. [6] With respect to the elements of the offence that must be proved, defence counsel has been very helpful and acknowledges that the Crown has proven the identity of the accused, the time and place of the offence, proved the nature of the substance cannabis (marihuana) and that the amount of the substance seized at 21 Doyle Street in Bedford (147 plants) is a sufficient quantity to establishing that its possession would be for the purpose of trafficking. I too agree that these elements have been proved. [7] Defence counsel raised two issues. First, Mr. Taylor argues that the Crown has failed to prove beyond a reasonable doubt that Mr. Lane was in possession of the banned substance, i.e. that he had knowledge and control of it, given that the plants and paraphernalia were located in the basement of the dwelling only accessible from an outside rear entrance. He also correctly points out that nothing relating to a grow operation was found in the main part of the dwelling. [8] Second, Mr. Taylor prevails upon the court to exclude from its consideration any activity or verbal utterances relating to the accused turning over a key to the basement door where the grow operation was located. He makes this submission in light of this court’s earlier ruling that the search warrants executed on Mr. Lane’s residence on December 15, 2005, were warrantless searches. [9] The defence submits that but for the manner in which the police officers were able to explain the purpose and scope of the search warrants to Mr. Lane after they entered his residence, he would not have given up the key to the basement door, therefore incriminating himself by demonstrating some control over the basement and its contents. [10] Defence counsel agrees that the key itself is real evidence, that might likely have been found by the police in the course of their search, and is properly admitted as real evidence consistent with my earlier ruling. Defence counsel rely on R. v. Collins, [1987] 1 S.C.R. 265 [1987] S.C.J. No. 15, S.C.C. and in particular paras. 48 and 50, and R. v. Mellenthin, [1992] 3 S.C.R. 615 [1992] S.C.J. No. 100 and in particular paras. 28 and 29; in support of the exclusion of the evidence relating to the circumstances of Mr. Lane turning over the key. I have carefully reviewed those decisions. [11] The Crown takes the position that the court should accept the evidence of the police officers with respect to their entry into the house and Mr. Lane’s cooperation in providing a key to the exterior basement door, an option he chose when the police explained they would otherwise gain entry by forcing the door, which unfortunately might cause some damage. Crown counsel, Ms. Bour submits that this evidence is relevant and its admission already decided by my earlier ruling. [12] The defence did not call evidence in this case. [13] The Crown called four witnesses, the police officers who executed the search warrants. [14] Constable Kevin Hovey was responsible for the continuity of evidence seized and actually disassembled the grow operation in the basement. He testified how the officers arrived at Mr. Lane’s residence and were admitted by him. He described an orderly scene where Detective Constable Willett the lead investigator explained the reason for their presence, the execution of the search warrants. He testified that Mr. Lane was the lone adult in the house with his two young children. He testified that Detective Constable Willett remained with Mr. Lane while the other officers searched the residence for any other occupants and there were none. [15] Once they had ensured the house was secure he and Detective Sergeant Calder went outside the house and around to the back of the house to the basement entrance and found it locked. [16] They returned to tell Detective Constable Willett. He and Mr. Lane were in the kitchen. They explained the door was locked. [17] Constable Hovey testified that after Detective Constable Willett had conversation with Mr. Lane, he produced the key to the basement and handed it to Sergeant Calder. Officers Hovey and Calder then proceeded to search the basement. [18] Sergeant Calder testified that their entry into the house was orderly and that Mr. Lane remained calm and was cooperative, that everything was fine and there were no issues. [19] Sergeant Calder’s evidence was similar to that of Constable Hovey relating to Mr. Lane giving him the key to the basement. He testified that he held up the key which was on a keyring and asked Mr. Lane if it was the right key. Mr. Lane confirmed it was the right key. [20] None of the officers who testified could remember where the key actually was before Mr. Lane gave it to Sergeant Calder other then to say it was close at hand in the kitchen, maybe on the counter or on top of the fridge. [21] Detective Constable Willett gave much the same evidence as officers Hovey and Calder; saying once the key was mentioned Mr. Lane immediately turned it over. [22] My earlier ruling is clear that the entry into Mr. Lane’s residence by the police amounted to a warrantless search and that any statements made by Mr. Lane in response to Detective Constable Willett, exercising the warrants, are conscriptive statements and not admissible. No specific statements made by the accused have been introduced in evidence. [23] However, Mr. Lane’s verbal acknowledgement as to the identity of the right key would be conscriptive in nature. His actions in producing the key and turning it over to Sergeant Calder is part of the res gesta. These actions arose in response to the officers announcing their stated purpose, the search of the premises, ruled to have been a warrantless search. [24] I agree with defence counsel that but for the conversation held between Detective Constable Willett and Mr. Lane he would not have demonstrated his control over the key nor handed it over to the officers. [25] I am prepared to exclude Mr. Lane’s conduct in turning over the key, which brings me to my consideration of his knowledge, control and possession of the cannabis (marihuana) absent this conduct. [26] Quite clearly the police officers would have searched out and found the basement grow operation in the course of their search. [27] The basement area, as described in the viva voce evidence and as seen in the photographs entered in evidence, is located below the kitchen and living area of the dwelling. Its entry is through a door to a covered porch at the rear of the property which leads down a set of concrete stairs to another door leading into the basement. This interior door was unlocked when the police gained entry. Through the window of this door, an air intake system had been connected that led directly to an insulated interior grow room that had been constructed in the basement. The basement had thus been divided into two sections, one, the outer area which contained all of the electrical devices to support the grow operation; the extension cords, electrical transformers or ballasts, discarded fuses and other paraphernalia, discarded pots with remnants of plants clearly visible, bags of discarded soil, hoses, watering cans and fertilizer containers. This outer area also housed the electrical panel and the furnace for the residence. [28] The second room, the constructed interior chamber, housed the grow operation; 147 plants, under 1000 watt heating lamps with large reflecting shades, controlled by timers set for a 12-hours on and 12-hours off growth cycle, consistent with the cultivation of plants in their mid stage of a 60-day growth cycle. [29] This room was exhausted through a small basement awning window, that led into the garage on the main level of the residence. The garage appears to be a later addition to the side of this house. All of the officers agree that the smell of marihuana was strong in the garage area. Not only was the marihuana directly vented into the garage, the basement awning window was beneath an open hatch leading up to the attic eaves above the living area of the house. I accept Detective Constable Caume’s evidence with respect to all of these matters. [30] The garage was accessed by an interior door from the dining room of the house. The officers testified that the dining, kitchen and living area was in fact an open plan concept. When the door was opened, the marihuana smell was clearly obvious. [31] In the garage, which was a messy site, a pile of children’s toys, suitcases and garbage bags had been placed in front of the awning window that exhausted the fumes from the grow room. The garage was easily accessed from the dining room and clearly used by the residents of the house. [32] Each officer had a slightly different recollection of when they just smelled marihuana, according to their location and their task in conducting the search. [33] Constable Hovey could identify a strong smell in the basement and garage. Sergeant Calder, his first smell when going down the basement steps. Detective Constable Willett, a strong smell emanating from the garage into the house when the dining room door was open into the garage. Detective Constable Caume, detected the smell on entering the house and then in the garage and basement as the search proceeded. It is fair to say that Detective Constable Caume has a trained nose, as an expert in drug detection and identification. I accept the collective evidence of these officers as to the apparent smell of marihuana in these premises. [34] I also accept all of the evidence that Detective Constable Caume has given with respect to this basement grow operation, including its street and wholesale value. He testified that while the operation was sloppy, it was efficient and the plants were in good health. It is very apparent from his evidence that anyone who entered the basement or the garage would be aware of this grow operation. [35] Mr. Lane was the sole adult present in the residence with his two preschool age children, when the police arrived to search his residence. It was an agreed statement of fact in the earlier application for exclusion of evidence that Mr. Lane and his family lived in this house at 21 Doyle Street for over a year, before the December 15, 2005, search for drugs. On that day his wife was at work and returned home to care for the children after a phone call from Mr. Lane explaining that the search was in progress. [36] I am satisfied beyond a reasonable doubt, that Mr. Lane had possession that is to say knowledge and control over the marihuana seized at his residence. I cannot accept the defence suggestion that a phantom grower may have been in charge of these activities. There is no evidence before me to suggest this to be the case. Defence speculation in this regard does not raise a reasonable doubt as to possession, in light of all the evidence I have before me. [37] This is a residence in which Mr. Lane lived for over a year. The basement is a part of the house notwithstanding its outside entry. It housed the furnace and electrical panel and the photographic evidence also shows many discarded fuses in the area and it is reasonable to assume it was accessed by Mr. Lane. [38] The grow operation was carefully planned and constructed and required very regular maintenance to produce its healthy plants as was evidenced by Detective Constable Caume’s testimony. The exhaust system was an integral part of the building and its exhaust entered into the living area via the garage and door into the dining area. [39] It is my view that using the reasonable person test a jury properly instructed who accepted the admissible evidence relating to this marihuana grow operation at Mr. Lane’s residence would return a verdict of guilty with respect to these offences. [40] On the evidence before me, which I did except, I am certainly satisfied beyond a reasonable doubt that the Crown has proved the required elements of this offence and I find Basil Richard Lane guilty as charged. Justice M. Heather Robertson