Trial judge erred in holding that defence had onus to establish honest belief defence

Ontario criminal | Drug offences

Possession for purpose of trafficking

Trial judge erred in holding that defence had onus to establish honest belief defence

Accused was found in marijuana grow operation. Accused claimed his boss had licence to operate marijuana operation. Boss had licence for another nearby location, but did not have licence to grow marijuana at location at issue. Accused was convicted of unlawfully producing marijuana and possession of marijuana for purposes of trafficking. Accused appealed. Appeal allowed. Trial judge erred in law in holding that defence had onus to establish honest belief defence, and was wrong to place any onus on accused and to hold that defence could only be made out by evidence that accused had seen licence. Trial judge convicted on basis that accused aided and abetted his boss in cultivation of marijuana, and focused not on whether accused was licensed to cultivate marijuana, but rather on his belief that his boss was licensed to cultivate marijuana. Trial judge may or may not have rejected honest belief defence.
R. v. Johnson (Aug. 18, 2016, Ont. C.A., Doherty J.A., K.M. van Rensburg J.A., and L.B. Roberts J.A., CA C59776) 132 W.C.B. (2d) 239.


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