Court of Appeal for Ontario

Citation: R. v. Vien, 2009 ONCA 729 Date: 2009-10-19 Docket: C50116

Between:

Her Majesty the Queen Appellant

and

Van Ly Vien Respondent

Before: MacPherson, Cronk and Epstein JJ.A.

Counsel: Maureen McGuire and Jason Mitschele, for the appellant Robert Sheppard, for the respondent

Heard and released orally: October 15, 2009

On appeal from the sentence imposed by Justice John Getliffe of the Ontario Court of Justice, on February 11, 2009.

Reasons for Decision

MacPherson and Cronk JJ.A.:

[1] The appellant Crown appeals the 18-month conditional sentence imposed on the respondent, Van Ly Vien, by Getliffe J. on February 11, 2009 for production of marijuana, possession of marijuana for the purpose of trafficking, and theft over $5000. The offences all related to a commercial grow-op operated by the respondent in a home in London. The appellant contends that the sentencing judge made an error in principle and that the sentence is unfit and that a custodial sentence of nine months should be imposed.

[2] We agree with the appellant that the trial judge erroneously conflated the forfeiture of offence-related property (in this case, the residence containing the grow-op and other property) with general sentencing principles. This error is explicable because the sentencing judge did not have the benefit of the recent decisions of the Supreme Court of Canada in R. v. Craig (2009), S.C.C. 23 and R. v. Ouelette (2009), S.C.C. 24.

[3] However, we are not persuaded that once this error is removed from the analysis, a conditional sentence was inappropriate. The sentencing judge clearly identified and took account of several aggravating factors, including the hydro by-pass in the house and the commercial purpose of the grow-op. However, there were strong mitigating factors – a guilty plea, the respondent’s employment and his family obligations – that inclined the sentencing judge to impose a conditional sentence. We can see no error in the sentencing judge’s balancing of the various factors. Finally, we note that the Crown seeks a custodial sentence of nine months. The respondent has served eight months and one week of his sentence. There is no point in incarcerating him for less than one month at this juncture.

[4] The appeal is dismissed.

"J.C. MacPherson J.A."

"E.A. Cronk J.A."

Epstein J.A. (Concurring):

[5] I concur with the disposition of this appeal proposed by my colleagues, but respectfully disagree with one aspect of their reasoning. I agree that there was an error in principle for the reasons set out by my colleagues, but I am of the view that the sentence was unfit for the following reasons.

[6] In R. v. Jacobson, 2006 12292 (ON CA), 207 C.C.C. (3d) 270, at para. 31, this court stated that:

A conditional sentence for a cultivation operation of this magnitude in a residential area would be rare even for a first offender.

[7] While that is not to say that the trial judge was not entitled to impose a conditional sentence, in my view this is not one of those rare occasions where one was appropriate. The nature of the sentence – a conditional one of 18 months – with only the first 12 months under what one may call strict terms, failed to give sufficient weight to the aggravating factors such as the hydro by-pass and the most significant aggravating factor, being the proximity of this grow-op to a school.

[8] I am of the view that the sentence suggested by the Crown of nine months incarceration would have been an appropriate sentence. That said, I agree with my colleagues that incarcerating the respondent at this point would serve no purpose.

RELEASED: October 19, 2009 ("J.C.M.")

"Gloria Epstein J.A."