Court of Appeal for Ontario

Date: 2017-12-15

Docket: C63398

Judges: Feldman, Tulloch and Benotto JJ.A.

Between

Her Majesty the Queen Appellant

and

David Bentley Respondent

Counsel

Kevin Wilson, for the appellant

Janelle Belton, for the respondent

Heard

November 23, 2017

Appeal

On appeal from the sentence imposed on January 27, 2017 by Justice E. Allen of the Ontario Court of Justice.

Reasons for Decision

[1] The Crown appeals a 90-day intermittent sentence imposed on the respondent following his guilty plea to the charges of production of marihuana, contrary to s. 7(1) of the Controlled Drug and Substances Act, S.C. 1996, c. 19 (the "CDSA"), and fraudulently consuming electricity, contrary to s. 326(1)(a) of the Criminal Code, on the bases that the sentencing judge erred in principle and that the sentence was manifestly unfit.

[2] The respondent was arrested on charges of carrying on a marihuana grow-operation at a rental house. At the time of the arrest, police searched a shed and located and seized 3,618 marihuana plants and 7 pounds of processed marihuana. It was also determined that the appellant was stealing electricity at the house to power the grow-operation equipment.

[3] At the sentencing hearing, the Crown sought a sentence of four to six years. Defense counsel requested a sentence of 90 days, to be served intermittently.

[4] The respondent had a related but dated previous conviction for the production of a Schedule II substance, for which he had been sentenced to a nine-month conditional discharge.

[5] At the time of sentence for the current charges, it was submitted to the court that the respondent was under the care of a psychiatrist, suffering from a series of chronic psychological ailments, including a history of depression and anxiety and a tendency to display intermittent chronic suicidal ideation. A letter was submitted by the respondent's psychiatrist indicating that the respondent presented as a high risk for decompensating if he were to be incarcerated.

[6] The sentencing judge sentenced the respondent to 90 days imprisonment, to be served intermittently. The reasons for sentence consisted of two paragraphs in which the sentencing judge did not address any of the principles of sentence which should have informed his decision, but rather stated that it was morally and rationally untenable for the federal government to seek to legalize the use of recreational marihuana while at the same time continuing to enforce the existing marihuana laws. In the view of the sentencing judge, the intended change in the law "cuts the legs out from under all of the traditional sentencing rules in this area."

[7] In our view, the sentencing judge erred in principle by failing to give appropriate reasons for sentence, as well as in the fitness of the sentence which he imposed.

[8] With respect to the reasons, the sentencing judge focused entirely on his personal views, which he advanced without inviting submissions on them from either party. We adopt the observation of Trotter J., as he then was, in R. v. Tran, 2016 ONSC 3225, where he observed that "the prospect of reform on the horizon" did not entitle the sentencing judge to disregard the rule of law. See also R. v. Song, 2009 ONCA 896, 100 O.R. (3d) 23.

[9] Both appellate counsel agree that by applying normal sentencing principles, the sentence imposed was unfit, given the high number of plants seized, the antecedent record of the respondent, as well as the pre-existing jurisprudence on sentencing for similar types of cases.

[10] The offence under s. 7(1) of the CDSA was subject to a mandatory sentence of three years. Because the grow-operation consisted of more than 500 plants and was located on a property owned by someone else, ss. 7(2)(b) and 7(3)(a) of the CDSA applied. We note that during sentencing submissions the sentencing judge took the view that he was bound by the decision in R. v. Pham, 2016 ONSC 5312, in which Code J. held that the mandatory minimum infringed s. 12 of the Charter and was of no force and effect. The appeal from that decision, along with two companion appeals, has been heard by another panel of this court and is under reserve.

[11] Both parties agree that it would be procedurally unfair to sentence the respondent based on the mandatory minimum sentence, as he was told by the sentencing judge not to make submissions on the constitutionality of the provision. Both parties also submit that an appropriate sentence in this case should be in the upper end of the reformatory range, somewhere between 15 months and 18 months incarceration. We agree. We are of the view that a fit sentence is 18 months.

[12] The respondent has tendered fresh evidence on this appeal. He is 62 years old and is now fully employed as an auto mechanic. He has two adult sons, with whom he has a very close relationship; he speaks to them on a regular basis.

[13] The respondent is also under the care of a psychiatrist and is being treated for anxiety and depression. He has completed serving his 90-day intermittent sentence and is fully reintegrated back into his community.

[14] In our view, the principles of specific deterrence and rehabilitation have been met in this case. While we agree that in the instant case, the principles of general deterrence and denunciation are of paramount consideration, we are also of the view that those principles are now satisfied with the imposition of a sentence of 18 months incarceration. It is also our view that to re-incarcerate this respondent would not be in the interests of justice, and would have undue adverse effects on this respondent.

[15] Accordingly, leave to appeal sentence is granted, and the appeal is allowed. In all the circumstances, we impose a sentence of 18 months and order that execution of that sentence be stayed.

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto J.A.