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How to use the experts in grow-op cases

|Written By Gretchen Drummie

A “fringe benefit” of the advances being made in the law concerning medical marijuana is the emergence of government-approved experts - other than drug cops - who provide opinion evidence on issues relating to marijuana grow-op cases, says a Toronto criminal lawyer.

Paul Burstein
Those experts can help criminal 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 relating to a location or suspect that was not previously known to the police,” said Burstein. “[It’s] a typical case where it’s a first-time offender, first-time location. Three types of information are detailed; there’s typically a tip from someone whether it’s confidential informer 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, Burstein said, “The state of the law is such that the police don’t need an expert in order to assess information 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 excessively high without providing backup 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 comparators 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 extent 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 construction, apparently the same hydro usage, that weren’t included and therefore maybe the information 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 reasonable and probable grounds for a search, especially if that’s the smell of burnt marijuana. That is, an officer must have sufficient expertise or training in order to accurately identify the odour and secondly, to relate it to the ongoing or continued possession of marijuana.”

Burstein said there’s a recent 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 referred 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 unlikely that you’ll make any hay by saying, ‘Well, the officer in the information to obtain didn’t specify fresh or burnt.’ But keep the distinction in mind nevertheless [that] there is a distinction in the law between the odour of burnt versus the odour of fresh marijuana.”

And that’s the question: Is the 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 significantly 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 cultivation, yield, value, and usage.

“Dried marijuana will have quite a pungent aroma . . . Of course depending on how it’s packaged also plays a significant role in the scent aspect,” said Nash. On top of that, not all marijuana 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 scientific backup for saying that depending 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 information to obtain,” he said.

Meanwhile, growers typically try and eliminate the odour with charcoal filtration systems and “if properly done, you can stand virtually 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 warrant is, if an officer “claims he was able to smell the odour of marijuana [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 argument 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 marijuana- 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 Ziplock bags, again inside a Tupperware container, inside another plastic bag, wrapped in clear newsprint, and then inside a box which is entirely 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 acknowledges 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 millennium, it was a “relatively sane exercise 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 Ontario 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 growers 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 aggravating factor is the value of the grow op. The potential commercial value is a function of three factors: the yield, the grower’s personal usage, 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.”

Burstein noted the marijuana medical access regulations “provide a great deal of help on these cases.”
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