The Canadian Criminal Justice System v. Itself (Regina v. George Passon, Not Present) 2011 BCSC 16

This case will not win a Golden Gavel any time soon; that, I can assure you. There is no crying victim or menacing villain. Had it not been for one peculiar fact, this case would be very typical of its jurisdiction.

This case is unusual because the accused absconded (presumably returning to Germany), and his trial proceeded without him. George Passon’s legacy highlights our criminal justice system’s various embarrassments: the bumbling rural police, the recalcitrant defense, the vindictive Crown and the snail’s pace of the proceedings all play a part in this comedy of errors overseen by the patient and cautious Justice Humphries.

First, I will overview how the investigative and judicial procedures are compromised by the nature of the crime being investigated, marijuana cultivation. This is particularly relevant given the recent Ontario Superior Court of Justice ruling in R. v. Mernegh, 2011 ONSC 2121 [Mernegh]. When busting grow-ops, cops are initially working on nothing more than a tip. Because there is no complainant, or witness, procedural requirements are sometimes applied “flexibly” out of investigative necessity.

This gives way to an onslaught of arguments from the defence, who essentially submits the entire Constitution into evidence. The trial judge is then painstakingly taken through all the arguments. She knows that she has to cut the cops some slack, as it’s damn near impossible to enforce cannabis cultivation laws in British Columbia, and convictions of drug offenders looks good in a press release. Still, she can’t grant them so much slack that the public gets wind of it and calls foul. Any misstep results in accusations of “bringing the administration of justice into disrepute.” This is such a thin line to be walking I think it’s debatable as to whether it even exists.

Here is how these stories start:

A Tip, and a Civil Servant who Discovers their Department is Being Ripped off

In March 2006, someone informed the RCMP to a possible grow-op near Winlaw, B.C., said to be owned by a young couple from Calgary. Two drive-by investigations yielded no evidence, and hydro records were normal. A month later, hydro inspectors alerted the police that there was a difference between actual and metered consumption of electricity at the address in question, indicating that power was in fact being diverted and stolen.

Cst. Stefani prepared The Information to Obtain (“ITO”) a Search Warrant by Telecommunication, later deemed necessary, as the nearest Judicial Justice of the Peace, whose authorization for search warrants is required, was (and continues to be) 500km away from their station.

Before sending it off, Sgt. Little reviewed the ITO and said they did not have enough information to obtain a warrant under the Controlled Drugs and Substances Act, SC 1996, c 19, so they wrote one for theft of electricity instead. The ITO requested entry to the property to quote un-quote ‘locate evidence of electrical diversion and subscriber records.’ No evidence of an electrical diverter was ever found, probably because soon after entering the abandoned main home, they found the commercial grow-op that satisfied the true nature of their inquest.

First, a judicial stay of proceedings was requested while the constitutionality of the telewarrant process in the remote area of West Kootenay was challenged. Humphries J responded by eliminating some of the Constitutional challenges and asking counsel for the accused to answer four questions about its case, and the AG of BC to answer two questions on theirs.  Read Humphries J’s judgment and questions here: R v Passon, 2008 BCSC 1067.  Later, she dismissed the application to have the search warrant quashed, but only at after an exhaustive review of the law and analysis of the system, found here: R v Passon, 2009 BCSC 192.

The Investigative Process

Four RCMP secured the property, which they found abandoned. The house, garage and a large blue outbuilding (which smelled of growing marijuana) were locked. The officers forced entry into the main house and began to “tally up light bulbs” [para 25] until they discovered a set of keys which unlocked the doors to the outbuilding.

Inside the outbuilding, some 50 yards from the main house, the officers discovered a commercial marijuana grow-operation worth between $560,000 and $1.2 million. Take note:

“the expert report containing the opinion that the amount is too large for personal consumption is admitted (into evidence).” [para 27].

A search of the two bedrooms in the residence produced a backpack containing documents belonging to Mr. Passon, including his German and Canadian passports.

Here’s a police policy that was new to me: Cst. Oster was about to be transferred, so was sent down to “guard the gate” in order to lessen the potential for him having to give evidence. I imagine he was already planning his commute to court when he saw a young man, walking alone up the muddy road from the highway, approaching the gate. The Constable asked, “Can I help you?”

“I live here,” replied the man, later identified as Mr. Passon. He was promptly arrested and given his Charter and police warnings. The admissibility of this statement was debated at length in the voir dire, but eventually dropped because it was assumed it was voluntary.

Cst. Oster did not make notes of the exact conversation, recording instead that “the owner” had arrived. Mr. Passon said that he did not want a lawyer, and because they were several hours away from Nelson, patiently remained in the back of the police car for five hours while the cops dismantled the grow-op (he was let out every half an hour to stretch his legs, during which time he was not handcuffed).

Eventually, at a loss of what to do with their suspect, the police allowed Mr. Passon to drive his own car to Nelson where he was photographed, fingerprinted and released on a Promise to Appear.

Two Years Later – The Pre-trial Procedures

Mr. Passon’s trial began in July 2008, but for reasons (application for a stay of proceedings, ruling on the ITO, lengthy voir dire etc.), substantive evidence was not called until June 2010. After waiting a few hours, the Court asked:

The Court: The first question for me is, has he absconded?

Defence: I think we should say that he has…He’s German. Frankly, he’s always on time. If he’s not here by now, that’s an assumption we can make.

Instead of adjournment, defence requested to remain on the record and have the trial proceed in his client’s absence, as his arguments were all Charter-based, and identification was not an issue.

While s. 465 of the Criminal Code allows for this anomaly, in a recent BC Court of Appeal case (R. v. Taylor) the courts were reminded that simply losing contact with one’s lawyer does not prove that a person has deliberately absconded and that the court may proceed in his or her absence. A trial judges must make inquiries concerning whether the failure to appear was born of malicious intent, or was accidental or unavoidable.

The trial judge balked at these recent precedents and instead ordered an adjournment until the police had undertaken measures to locate Mr. Passon. She also reminded Passon’s defense of s. 475(2), which allows the court to draw an adverse inference against the accused for absconding. Defence said that he had not considered this [para 8], and agreed to the issuance of a general bench warrant. The RCMP knocked on the door of Passon’s last known address, where they predictably did not find him. The rest of the story proceeds with the general assumption that George Passon is in Germany, without his BC driver’s license but thanking his lucky stars that he got to keep his passport.

Three Months Later: The Trial Process:

Passon was charged with producing marijuana contrary to s. 7(1), and possession of marijuana for the purpose of trafficking, contrary to s. 5(2). In order to prove either, the Crown must show that the accused had knowledge and a measure of control over the blue building.

The Crown argued that Passon’s fingerprint on a coffee cup found in the outbuilding, the statement “I live here”, his backpack in the master bedroom coupled with the smell emanating from the outbuilding led to the irresistible inference that Passon had knowledge and control of the grow operation. Counsel submitted that when the adverse inference arising from his failure to attend the trial is added, the case is at least proved beyond a reasonable doubt.

The Defence referred to many cases where the evidence against the accused was stronger, and acquittals were entered. It was mentioned that:

• The accused did not own the residence
• There was no rental agreement implying he lived there with permission
• None of the utilities were in the accused’s name
• There was no odor of marijuana in the residence
• The coffee cup could have been transported into the outbuilding after Passon arrived at the scene, as the warrant was being executed
• The landlord (the true suspect) in pursuit of whom the warrant was originally issued was not called to give evidence, as she was still at large.

The Crown referred to some recent cases on the issue of proof of possession and control by circumstantial evidence, and the need to use common sense when analyzing the evidence, but Justice M.A. Humphries found the evidence simply suggested Mr. Passon lived or was staying at the residence temporarily.

The Court of Appeal in R. v. Dae, 2010 BCCA 486 recently quoted with approval the principle from R. v. Jenkins (1908), 14 CCC 221:

“…there comes a time when, circumstantial evidence having enveloped a man in a strong and cogent network of inculpatory facts, that man is bound to make some explanation or stand condemned.”

In absence of any other explanation, Justice Humphries found that there is certainly one inference that can be drawn that Passon had knowledge and control over the drugs, but there are many other possible scenarios – (perhaps he was acting as caretaker of the property for the owners, maybe he was a squatter!) but there was no evidence that he had access to or could grant access to the blue outbuilding.

While a negative inference could be drawn to buttress the Crown’s case, Justice Humphries decided she would not buttress the Crown’s case in this fashion, as there were reasonable explanations for his flight to Germany – after watching the police dismantle the grow op, sitting for five hours in a police car, and being the only person accused, it could support an inference of flight amounting from his simple knowledge of the crime.

Humphries J found Mr. Passon not guilty on both counts, but reminded the court that this does not affect his outstanding warrant, as he has an obligation to attend court. That failure will be dealt with “as the court sees fit.”

In conclusion, I would just like to note the role of the lawyer in all this mess. Had George Passon insisted on one, as was his right, I think there’s a good possibility he would be behind bars right now. The lawyer, not the criminal, is the policeperson’s natural adversary. The criminal is his work, but the lawyer is his undoing; when one is called, the carefulness of the policeperson’s work corresponding increases. While this is usually thought to benefit the accused’s treatment, it also makes his case harder to fight.