Peter DeFreitas

The appellant, who grew marijuana for medical purposes, was charged with unlawfully producing cannabis and elected to be tried by a judge and jury.

At trial, the judge directed the jury to return a guilty verdict and told them they were bound to abide by his direction.

The jury returned a guilty verdict, which was upheld by the Court of Appeal.

The Supreme Court of Canada allowed the appeal, holding that the trial judge deprived the appellant of his constitutional right to a trial by jury under s. 11(f) of the Charter by usurping the jury's function.

The Court further held that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code could not apply because there was, in effect, no jury trial at all.

A new trial was ordered.

The accused was convicted of possession of contraband cigarettes and faced a mandatory minimum fine of $9,600 under the Excise Act.

Finding the accused unable to pay and concluding that jail was inappropriate, the trial judge imposed a conditional sentence in default of payment.

The Supreme Court of Canada allowed the Crown's appeal, holding that a conditional sentence is a form of imprisonment and cannot be used merely to enforce an unpaid fine where the offender genuinely lacks the means to pay.

The Court set aside the conditional sentence but stayed further collection procedures since the sentence had already been served.