Court File and Parties

Court File No.: 13-07937 Central East Region-Newmarket

Date: 2015-03-11

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jeffrey Prior

Before: Justice Peter C. West

Evidence and Submissions: March 3, 2015

Reasons for Sentence: March 11, 2015

Counsel:

• Ms. Monardo, for the Crown
• Mr. P. Lewin, for the accused

WEST J.:

Introduction

[1] Mr. Prior pled guilty to production or cultivation of cannabis marihuana on March 3, 2015. He has a dated criminal record, which includes convictions for trafficking in a substance and possession for the purpose of trafficking in 1991 (90 day intermittent sentence); production of a substance in 1998 (90 day intermittent sentence) and possession of marihuana in 2011/2012 (fine).

[2] Police executed a search warrant at Mr. Prior's home and discovered 99 marihuana plants in various stages of growth. It was agreed there were 60 clones or clippings; 26 flowering plants and 13 vegetative plants. The clones were in the basement, the flowing plants, which would be harvested, were in the indoor pool area and the vegetative plants were in a small electrical room attached to the indoor pool. Access to all rooms was restricted by locks to which Mr. Prior had the only keys. It was agreed by the Crown Mr. Prior was growing the marihuana for medical use because of severe pain, which he experiences as a result of a catastrophic motorcycle accident and I will provide further details concerning this later in my reasons for sentence.

[3] There were also a number of baggies containing marihuana with a total weight of approximately one pound. Police also located 1 exhaust fan, 11 shades, 10 light bulbs, 5 timers and 8 ballasts. The Crown is not seeking forfeiture of Mr. Prior's house pursuant to s. 16 of the CDSA, in large part because of the purpose for which Mr. Prior was growing the marihuana, namely, pain management. Further, the Crown does not allege Mr. Prior possessed the marihuana or produced it for the purpose of trafficking.

[4] Mr. Prior's criminal record, which contains a number of entries when he was a youth as well as the three convictions indicated above, was filed as Exhibit 1. Mr. Prior testified on the sentencing hearing.

[5] Mr. Prior is 46 years of age. He is married and resides with his wife and five children, ages 13-18. He is not working because of his continuing disability caused by a motor vehicle collision in which he was involved in 2004. I was advised by his counsel the combined family income between he and his wife is just less than $4000 per month. Mr. Prior's own main source of income is ODSP disability benefits from the Province of Ontario.

The Catastrophic Accident and Resulting Injuries

[6] On July 24, 2004, Mr. Prior was operating his motorcycle with a passenger driving southbound on Highway 48. An impaired driver operating a ¾ ton pickup truck was travelling northbound and crossed the centre line and struck Mr. Prior's motorcycle head-on. Mr. Prior's passenger was killed as a result of the collision. Mr. Prior was thrown from his motorcycle and his chest was impaled on a fence post. He was airlifted to Sunnybrook Hospital. He suffered 47 fractures to his body, including a bilateral compound wrist fracture, fractured ribs, fractured skull, broken left shoulder, both legs suffered compound fractures, and his left foot was so badly damaged it was amputated and then re-attached by being fused. He is blind in his left eye and his vision in his right eye is 12/20. He has had 27 surgeries since the accident. He developed a serious infection in his left femur. Mr. Prior spent seven months as an in-patient at Sunnybrook Hospital and another eight months as an in-patient at St. John's Rehabilitation Hospital. He then spent three years as an out-patient at St. John's Rehabilitation Hospital.

[7] Mr. Prior deals with severe pain on a daily basis. He experiences pain in his left foot, left hand, his rib cage, left shoulder, his back and his left hip and knee when walking. His sleep is limited as he is unable to sleep for more than two hours at a time when it is necessary for him to get up and move around or the pain becomes unbearable. He has great difficulty lifting anything and is only able to lift with his right arm, which is fairly strong. In Tab 1 of Exhibit 2 there is an Independent Medical Evaluation by Dr. Edwin P. Urovitz, Orthopaedic Surgeon, dated September 22, 2006; an Independent Medical Evaluation by Dr. Jack Mayer, Neurosurgeon, dated September 21, 2006; and an Independent Medical Assessment, Functional Capacity Evaluation by Michelle Kaplan, Physiotherapist, dated September 25, 2006. In Tab 2 of Exhibit 2 there is a Final Summary Report dated October 17, 2006. All of the injuries I have described are set out in these reports and were testified to by Mr. Prior.

Medical Marihuana Licensing and Use

[8] Mr. Prior made application for a license from Health Canada to possess medical marihuana and a licence to produce medical marihuana shortly after his conviction for simple possession of marihuana in 2011/2012. I was advised Mr. Prior was originally charged with production of marihuana and possession for the purpose of trafficking in marihuana; however, the Crown accepted a guilty plea to the lesser included offence of simple possession, despite the fact there was six pounds of marihuana, in addition to a large number of marihuana plants that were seized by police. I was advised by the Crown the sentence of a fine was a joint submission. Reading between the lines it is my view the Crown was made aware of Mr. Prior's significant pain issues caused by the catastrophic accident he was involved in, in 2004.

[9] The licenses were provided to him in May 2012 but were back dated to April 9, 2012. Exhibit 3 is the application for the two licenses signed by Dr. Saul, a pain specialist. Mr. Prior advised me that Dr. Saul advised Mr. Prior he was no longer going to be signing applications for medical marihuana licenses and Mr. Prior's application would be his last. He provided Mr. Prior with a renewal form that he signed and advised Mr. Prior to submit it before the expiration of the two licenses, which was April 9, 2013. Tab 4 in Exhibit 2 is his license to possess marihuana for medical purposes. He had a license to produce marihuana and he provided it to the police when they executed the search warrant. They told him it had expired and the officer tore it up.

[10] It is interesting to note, despite having a fairly significant criminal record, Health Canada issued Mr. Prior a license to produce marihuana for medical purposes.

[11] Mr. Prior testified when he was using marihuana to assist in managing his pain he would take it as tea. Mr. Prior testified before he was charged he was using 11 to 13 grams of marihuana a day, usually in tea.

[12] Mr. Prior sent in the renewal prior to the expiration of his one year license but never heard back from Health Canada about whether his licenses had been renewed. Mr. Prior told me he attempted to contact Health Canada but became frustrated by the length of time he was put on hold so he hung up. He tried to speak to someone on two occasions about his renewal but never actually spoke to anyone. Mr. Prior candidly admitted he should have been more diligent in following up with Health Canada. This was why he pled guilty to the offence of production, as he had not received the renewal of his license to produce.

[13] Between January 2012 and October 2013, his pain issues remained unchanged. In Tab 3 of Exhibit 3 there is a letter from his current family doctor, Dr. P. Marchuk, dated February 4, 2015, which indicates Mr. Prior has been prescribed opiate analgesics for many years as a result of his chronic pain resulting from the injuries he suffered referred to above. He is currently prescribed Oxycodone CR 80 mg every 8 hours and short lasting Oxycodone 10mg 3 per day for breakthrough pain relief. In her letter Dr. Marchuk wrote that Mr. Prior reported his pain control is assisted and improved by using medical marihuana as ordered by Dr. Saul, a pain specialist. His family doctor opines in her letter that Mr. Prior's pain is not expected to improve with the passage of time and he will forever require pain medication. Mr. Prior testified his prescription for oxycodone was as high as 140 mg every 8 hours prior to using medical marihuana to assist in managing his pain.

[14] Unknown to Mr. Prior, his son signed for a letter which had been sent to Mr. Prior concerning his renewal application. His son had been leaving the house to go to school when the courier brought the letter. He put the letter in his back pack. It ended up in his locker at high school and was brought home when school ended but it was mixed up with other papers from his locker that he brought home and put in his bedroom. Mr. Prior did not see the Health Canada letter until November 2013 after he was charged. Tab 5 in Exhibit 2 is the letter sent by Health Canada advising him that Health Canada would keep his application on file but he needed to get another approved doctor/specialist to sign the application as Dr. Saul had withdrawn his support.

[15] Mr. Prior testified he was able to harvest an ounce and a half of marihuana from an individual flowering plant. The day before the police executed the search warrant Mr. Prior testified he had cut the clones from the mother plants the night before. It would take the clones 10-14 days to start to grow. The vegetation stage takes about four to six weeks after which the plant moves to the flowering stage. The reason the police found dried marihuana in baggies is he would package the marihuana in monthly or weekly amounts, which was required by his license to possess from Health Canada.

[16] There are new regulations which determine who can grow medical marihuana. The current regulations only allow for licensed facilities to produce marihuana. Individuals are not permitted to produce marihuana anymore unless they had a license at the time the new regulations were made law. Mr. Prior was not grandfathered in as he did not have a valid license when the new regulations became law. Consequently, currently, if he was approved for a license to possess medical marihuana he would have to purchase the marihuana from a licensed facility at a cost of approximately $10 per gram. This would cost Mr. Prior about $3000 a month, which is a sum he cannot afford given his family's total monthly income at the present time.

Crown and Defence Positions

[17] It is the Crown's position Mr. Prior should be sentenced to a six month period of incarceration. The Crown argues Mr. Prior previous drug-related convictions and the sentences he received justify a six month jail sentence.

[18] It is the position of the defence that Mr. Prior should not be sent to jail for growing marihuana to assist him in managing his severe pain. Mr. Lewin agreed Mr. Prior should not be granted a discharge given his prior record. Mr. Lewin submitted the appropriate sentence was a significant fine. If Mr. Prior was given sufficient time to pay, he would be able to pay a fine. Mr. Lewin referred to a number of decisions across Canada, in various levels of court, where persons charged with production of marihuana for the purpose of assisting with medical conditions were not sentenced to imprisonment. The sentences imposed ranged from conditional discharges to suspended sentences to fines.

[19] The Crown was unable to provide me with a single case that supported a jail sentence for persons charged with producing marihuana for medical reasons.

Legal Principles: Proportionality in Sentencing

[20] The Criminal Code defines the fundamental principle of sentencing as proportionality. Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] In R. v. Nasogaluak, 2010 SCC 6, at para. 42, LeBel J., for the Court, held the principle of proportionality:

…requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

Comparative Case Law on Medical Marihuana Production

[22] It was Mr. Lewin's submission that an individual who is growing marihuana as medicine should not be sentenced to a period of imprisonment. In R. v. Small, 2001 BCCA 91, [2001] B.C. J. No. 248 (C.A.) the accused had pled guilty in Provincial Court to producing marihuana and was convicted and fined $3000 plus 12 months' probation. Mr. Small had been growing marihuana to sell to the British Columbia Compassion Club Society, at an amount substantially less than its value in the illicit market. The police had seized 31.5 pounds. The Compassion Club was a registered non-profit organization that provided a variety of services to its 700 members, including the sale of marihuana for medical purposes. Over 80 per cent have letters provided by doctors and the balance must satisfy a number of criteria established by the club. Mr. Small was one of 15 marihuana suppliers to the Club and he himself used marihuana for medical purposes. Mr. Small had a previous record for production of marihuana. The British Columbia Court of Appeal reduced Mr. Small's sentence to a conditional discharge with 12 months' probation.

[23] In R. v. Lange, 2002 BCPC 483, [2002] B.C.J. No. 2622, (Prov. Ct.), the accused was charged with production of marihuana. He was selling the marihuana he produced to a Compassion Club in Edmonton for medical purposes. He was selling the marihuana for a substantially reduced cost but the Crown alleged he was receiving from $500 to $800 a month profit. The accused had a number of convictions for drug-related offences and had received previous sentences of imprisonment, although there was a significant gap between the last conviction and the current charges. The Crown conceded Mr. Lange was not solely motivated by greed as the marihuana produced was being sold for medicinal purposes. The sentencing judge granted a conditional discharge.

[24] In R. v. Maloney, [2011] ONCA 821 the accused was convicted of possession for the purpose of trafficking. Police stopped a vehicle and found 521 grams of marihuana and 55 grams of cannabis resin. The appellant used the marihuana for medicinal purposes, pain associated with lumbar scoliosis. The appellant did not have a license to possess marihuana for medical purposes. He was originally sentenced to 30 days in jail to be served intermittently and a probation order by the sentencing judge. The Court of Appeal reduced the sentence to time served and the probation order was struck. There was no indication in the judgment of what the time served was. The Court made the following comment:

…we are satisfied that given the appellant's illness, the uncontested fact that the appellant uses cannabis for medicinal purposes and that he has made efforts to comply with the MMAR, it is now in the interests of justice to allow the sentence appeal.

[25] Mr. Lewin provided a large number of cases where persons producing marihuana for Compassion Clubs were granted discharges or fines (see R. v. Lucas, [2002] BCPC 268 (three kg of marihuana for Compassion Club: granted absolute discharge); R. v. Hogan, [2003] B.C.J. No. 3196 (Prov. Ct.) (growing 26 marihuana plants to alleviate chronic pain: granted conditional discharge); R. v. Simpson, [2008] NSSC 57 (1100 plants, extracting oil and providing to persons with medical illnesses: received a $2000 fine); R. v. Young, [2008] MBPC 50 (80-90 plants, using marihuana for pain from back injury: granted conditional discharge); R. v. Kreiger, [2009] MBQB 321 (after trial convicted of possession for the purpose of trafficking, selling marihuana to persons with medical illnesses, prior record for related offences: suspended sentence and probation); R. v. Tweedy, [2010] O.J. No. 5444 (ONCJ) (possession of marihuana for purpose of trafficking, 1239 grams of marihuana, intending to process marihuana into 60 milligrams hemp oil to be used by friend with terminal cancer: absolute discharge); and R. v. McPherson, [2011] BCPC 482 (673 marihuana plants, accused had medical condition and growing marihuana for pain relief for both himself and his wife, 10 months after charges laid the accused and his wife obtained licenses from Health Canada: granted conditional discharge)).

Analysis and Sentencing Decision

[26] The issue on this sentencing is whether Mr. Prior should be imprisoned in the circumstances of his case. Mr. Prior suffered serious catastrophic injuries as a result of a head-on collision with an impaired driver who crossed the centre line and struck Mr. Prior's motorcycle. Since 2004 Mr. Prior has suffered from chronic, debilitating and incapacitating pain. The Crown agreed Mr. Prior was a truthful witness in dealing with his injuries, his resulting pain and his use of marihuana to alleviate that pain. The Crown accepts there was no commercial benefit sought by Mr. Prior in growing marihuana. The production was solely for medical purposes.

[27] The legitimacy of Mr. Prior's use of marihuana to alleviate his chronic pain is demonstrated by the Crown's acceptance of a plea to simple possession and a sentence of a fine in 2011 or 2012. That legitimacy is further demonstrated by Health Canada issuing Mr. Prior licenses to possess and produce medical marihuana. I accept Mr. Prior's evidence that he was unaware of the Health Canada letter, which was signed for by his son and then unfortunately misplaced until November 2013, after the execution of the search warrant by police in October 2013. I further accept Mr. Prior's evidence he relied on Dr. Saul signing the renewal application and providing it to him to submit to Health Canada, which he did. The response by Health Canada in Tab 5 in Exhibit 2 supports Mr. Prior's testimony that he submitted the signed renewal before the expiration of his one year licenses. If Mr. Prior had promptly and diligently followed up his application for renewal with Health Canada it is my belief his renewal would have been granted. The conduct therefore which determines the gravity of the offence committed by Mr. Prior is his failure to properly apply for the renewal of his licenses that Health Canada had previously approved. If his licenses had been renewed, as I believe they would have been, he would not have been guilty of any offences under the CDSA.

[28] I indicated to counsel during submissions it was my view a conditional discharge was not an appropriate sentence having regard to Mr. Prior's prior record. I do take into account the significant gap from his conviction in 1998 to his conviction for simple possession of marihuana in 2011/2012. His possession of marihuana at that time was for medical purposes, this was why the Crown agreed to withdraw the production charge and reduce the charge of possession for the purpose of trafficking to simple possession. Further, for the same reasons the Crown agreed to a non-custodial sentence.

[29] Although production of marihuana usually attracts a sentence that addresses the sentencing principles of deterrence and denunciation, it is my view, the factual circumstances of this case significantly reduce, if not eliminate, the necessity of imposing a sentence to reflect those sentencing principles. It is my view the factual circumstances of this case make it a case that involves exceptional circumstances, which have been recognized by the Ontario Court of Appeal as significant mitigation, such that an offence which normally would attract a jail sentence, does not as a result of the exceptional circumstances which exist.

[30] It is my view the interests of justice require the imposition of a non-custodial sentence in respect of this charge of production given the unusual and exceptional circumstances I have outlined above. To impose a sentence of jail would be completely disproportionate to the gravity of the conduct engaged in by Mr. Prior and his motivation and reasons for producing the marihuana. Consequently, I am suspending the passing of sentence and placing Mr. Prior on probation for a period of two years.

Released: March 11, 2015

Signed: "Justice Peter C. West"