



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Macsanszky, 2013 ONCA 672

DATE: 20131104

DOCKET: C56019

Goudge, Cronk and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Thomas Macsanszky

Appellant

Leo Adler, for the appellant

Howard Piafsky, for the respondent

Heard and released orally: October 31, 2013

On appeal from the conviction entered on April 23, 2012
    and the sentence imposed on October 3, 2012 by Justice W.P. Bassel of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant appeals his convictions of unlawfully producing and
    possession of marijuana for the purpose of trafficking and theft under $5,000
    of electricity.  He also seeks leave to appeal his sentence of nine months.

[2]

On the conviction appeal, the appellant submits that the verdict was
    unreasonable and that the trial judge erred in drawing a negative inference
    from the appellants failure to testify.

[3]

We disagree.

[4]

This was a case based on circumstantial evidence.  It was conceded at
    trial that the activities at the subject property constituted a marijuana
    grow-op and that the marijuana was possessed for the purpose of trafficking.

[5]

Evidence of the appellants knowledge, possession and control of the
    operation could properly be inferred from the facts.  They included:

-

the
    appellant owned the subject property

-

the
    title and mortgage documents described the appellants address for service as
    being the subject property

-

as
    of December 3, 2009, when the search warrant was executed, the whole house was
    committed to a grow-op and was not being occupied for daily living or
    habitation

-

plastic
    covered the windows of the property

-

the
    grow-op required regular tending

-

the
    evidence that Hashim Curtis lived at the property was limited to the February
    to July 2008 time frame

-

the
    police seized eight documents addressed to the appellant, five of which were
    addressed to him at the subject property.  The latter group of documents bore
    dates commencing June 29, 2009 through and including November 24, 2009 and
    related to such things as renewal of fire insurance, hydro and gas bills.

[6]

In our view, the trial judge properly instructed himself on the
    applicable legal principles.  The verdict reached by him was one that a trier
    of fact, acting judiciously, could reasonably render on the evidence before
    him.

[7]

Secondly, the trial judge did not impermissibly use the appellants
    silence to find guilt.  The trial judge had already concluded that the Crown
    had established the appellants guilt beyond a reasonable doubt and considered
    the appellants silence within the context described in
R. v. Noble
,
    [1997] S.C.J. No. 480.  The silence assured the trial judge that he need not
    speculate about unspoken explanations.

[8]

Lastly, the sentence was not demonstrably unfit or based on an error in
    principle.  The offences were driven by greed; the operation was large and the
    value of the marijuana was significant.  He considered rehabilitation but in
    the circumstances, it was reasonable for the trial judge to conclude that a
    conditional sentence would not achieve the sentencing objectives of deterrence
    and denunciation and that incarceration would signal societys condemnation of
    the appellants conduct.

[9]

In the result, the conviction appeal is dismissed.  Leave to appeal
    sentence is granted but the sentence appeal is dismissed.

S.T. Goudge J.A.

E.A. Cronk J.A.

S.E. Pepall J.A.


