Law Times

PAGE 12 FOCUS December 15, 2008 • Law Times How to use the experts in grow-op cases BY GRETCHEN DRUMMIE Law Times A "fringe benefit" of the advances being made in the law concerning medi- cal marijuana is the emergence of government-approved experts — other than drug cops — who pro- vide opinion evidence on issues re- lating to marijuana grow-op cases, says a Toronto criminal lawyer. Those experts can help crimi- nal defence lawyers in defending these cases, said Paul Burstein who revealed some grow-op case tips during a workshop at the Criminal Lawyers' Association conference. Burstein told those gathered that the first area lawyers tackling these cases should focus on with experts involves searches. "Typically there are three or four pieces of investigative detail in an information to obtain relat- ing to a location or suspect that was not previously known to the police," said Burstein. "[It's] a typi- cal case where it's a first-time of- fender, first-time location. Three types of information are detailed; there's typically a tip from some- one whether it's confidential in- former or Crime Stoppers; there's hydro usage information . . . and thirdly, observations of a suspected grow location, such as an odour of marijuana being emitted from the premises, coverings on windows, those types of things." Burstein said tips on a grow-op case are generally no different than other search-warrant cases, and those legal principles apply. With respect to hydro usage, information or any indication that opinion was provided with some proof, "it may be vulnerable." Even in those informations to obtain where the police provide the backup detail, the monthly records for a given location for example, there still may be "some room for challenge where either they haven't provided sufficient comparators, that is other locations, or the com- parators that they've provided are misleading in some way. So, if they haven't provided all the houses that are nearby on the street that are similar construction, architecture, that type of thing, you may have some room to maneuver there." "My suggestion is to the ex- tent that you have one of those situations, go out and take some photos so you can actually show a judge that there are some material omissions, that there are houses that are the same size, same con- struction, apparently the same hydro usage, that weren't included and therefore maybe the informa- tion is misleading," he said. The third detail he focused on was the idea of there being an odour of marijuana. He said that in terms of the law in Ontario, the "smell of pot alone will rarely afford reason- able and probable grounds for a search, especially if that's the smell of burnt marijuana. That is, an of- ficer must have sufficient expertise or training in order to accurately identify the odour and secondly, to relate it to the ongoing or contin- ued possession of marijuana." Burstein said there's a recent Burstein said, "The state of the law is such that the police don't need an expert in order to assess informa- tion they provide and information pertaining to hydro usage." But, he said, if the information to obtain doesn't have any details, it just says hydro usage is excessive- ly high without providing backup case from the Saskatchewan Court of Appeal called R. v. Janvier that's "an excellent review of almost all the plain smell cases as they're re- ferred to in Canada, with a helpful conclusion. For grow-op cases, the investigative detail when they refer to the smell of marijuana it's almost always going to be read as the smell of fresh marijuana, though it's un- likely that you'll make any hay by Life Has Enough Great Mysteries www.henderson.ca 1.800.263.8537 Your Partners In Service® Since 1981 Paul Burstein recently gave crim- inal lawyers tips on defending grow-op cases. saying, 'Well, the officer in the in- formation to obtain didn't specify fresh or burnt.' But keep the dis- tinction in mind nevertheless [that] there is a distinction in the law be- tween the odour of burnt versus the odour of fresh marijuana." And that's the question: Is the Photo: Phil Brown nature or pungency of that aroma different as to between marijuana which is still in its vegetative state, as compared to when it's been dried out in preparation for smoking? "Certainly with cannabis, the smell of dried marijuana is signifi- cantly different than marijuana is in its vegetative state. In fact, vegetative marijuana, if you have it in soil and dirt, you're more likely to smell the dirt than you are in fact the actual cannabis plants, even if there are a significant number in an enclosed space," said Eric Nash, a qualified expert witness in marijuana cultiva- tion, yield, value, and usage. "Dried marijuana will have quite a pungent aroma . . . Of course depending on how it's pack- aged also plays a significant role in the scent aspect," said Nash. On top of that, not all mari- juana plants emit the same level or degree or pungent smell. There are numerous strains and hybrids of the different plants, said Nash. "There is a wide range of levels of smell based on the strain, how it's grown, when it's harvested." Nash also said the stage of growth affects the degree of pungency. Burstein added there is scien- tific backup for saying that de- pending on what stage of grow the plants are at, they may or may not be emitting much if any, of a very pungent smell. "Think about that when you have evidence. You'll have photographic evidence of what stage the grow was at when it was seized. An expert can then take it back to when an observation, say a police officer milling about the outside of the property claiming to smell a very pungent smell, the expert would be able to say that's simply impossible because a month ago those plants wouldn't have been emitting virtually any smell. "So there actually is perhaps an objective basis for challenging some of those statements in an in- formation to obtain," he said. Meanwhile, growers typically Structured Settlements BC LT 4/6/05 2:54 PM Page 1 try and eliminate the odour with charcoal filtration systems and "if properly done, you can stand virtu- ally right outside the exhaust as the plants are in full flower at 10 weeks and you can't smell a thing if it's a good charcoal canister," said Nash. So, Burstein said, the thing about challenging the search war- rant is, if an officer "claims he was able to smell the odour of mari- juana [for example] being emitted from the basement of a premises, if the search reveals there was a fairly decent charcoal filtration system you could probably argue that the officer must have gotten right up to the edge of the filter in order to make that olfactory observation." That may then create argu- ment that it wasn't as if the officer was walking on public property to make the observation but rather he had to trespass to make it, he said. Meanwhile, Nash said those who distribute the drug to medical users follow Canada Post marijua- na-shipping guidelines developed jointly by CP and Health Canada. The aim is for it to be packaged so it can't be smelled so it's put in Zi- plock bags, again inside a Tupper- ware container, inside another plas- tic bag, wrapped in clear newsprint, and then inside a box which is en- tirely sealed with packing tape. Burstein said it's "interesting" that this protocol exists to avoid creating a distinct odour. "I would suggest that you could make a case that where in your situation the officer claims that he smelled the odour of fresh marijuana being emitted from the trunk of your client's car and it turns out that it is in a baggie, double bagged in a garbage bag in a knapsack, which is in a box, which is in a secured safe, that Health Canada itself ac- knowledges that is just not possible because its own protocol says that it will be seized and turned over to police in a similar situation." Turning to sentencing, Burstein said that at the turn of the millen- nium, it was a "relatively sane ex- ercise in most jurisdictions" and in the absence of aggravating factors, conditional terms were available for pot cases. But, he said, about five years ago, the courts in On- tario began to "fall prey to what I'll call the marijuana menace. It seems that conditional sentences for first offenders in marijuana grow cases, and at almost any level, are very rare, if not almost impossible." He said an aggravating factor relied upon is the likelihood of fire. But Nash noted most of the grow- ers he's met with are "quite careful in terms of the wiring . . . they've got good ventilation. . . . Generally there isn't much real risk." Perhaps the most significant ag- gravating factor is the value of the grow op. The potential commercial value is a function of three factors: the yield, the grower's personal us- age, and the black market value. Burstein said experts typically estimate crop yields based on a formula where they multiply the number of plants times about two to two-and-a-half ounces if not higher. But Nash said, "It should be calculated based on reality." Berstein noted the marijua- na medical access regulations "provide a great deal of help on these cases." LT Baxter_LT.indd 1 www.lawtimesnews.com 12/11/08 9:02:24 AM

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