Her Majesty the Queen v. Song [Indexed as: R. v. Song]

100 O.R. (3d) 23

2009 ONCA 896

Court of Appeal for Ontario,

Moldaver, Simmons and Blair JJ.A.

December 16, 2009

Criminal law -- Sentencing -- Principles -- Drug offences -- Accused setting up and running large-scale marijuana grow operation in residential area -- Trial judge imposing 12-month conditional sentence and three years' probation for producing marijuana -- Trial judge erring in refusing to apply binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at appropriate sentence based on personal opinion that such incarceration ineffective in preventing future marijuana-related offences -- Sentence unfit despite accused's guilty plea and lack of criminal record -- Conditional sentence inappropriate -- Accused having served sentence when appeal heard -- Crown's appeal dismissed solely on basis that accused had already served his entire sentence.

The accused, a first offender, pleaded guilty to producing marijuana. He set up and ran a large-scale marijuana grow operation in a residential area. The operation involved a hydro bypass and the theft of electricity. In sentencing the accused, the trial judge refused to take into account the principle of deterrence, stating that it had proven to be ineffective in the context of drug offences. The trial judge imposed a conditional sentence of 12 months, followed by three years' probation. The Crown appealed.

Held, the appeal should be dismissed.

The trial judge erred in treating the principle of appellate deference to sentencing judges as leave to impose with impunity a sentence based on his personal views of national drug policy. He erred in refusing to apply both the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at an appropriate sentence in cases of this nature. This was not one of those rare cases where a conditional sentence is appropriate for producing marijuana. At the time of sentencing, a period of incarceration would have been warranted. However, the accused had already served his entire sentence, and it would not serve the interests of justice to send him to prison at this point.

APPEAL by the Crown from the sentence imposed by J.E. Allen J. of the Ontario Court of Justice dated October 14, 2008 for producing marijuana.

Cases referred to R. v. Chen, [2007] O.J. No. 1153, 2007 ONCA 230, 73 W.C.B. (2d) 287; R. v. Dawson, 2004 6662 (ON CA), [2004] O.J. No. 3302, 189 O.A.C. 147, 62 W.C.B. (2d) 594 (C.A.); R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527, 209 O.A.C. 162, 207 C.C.C. (3d) 270, 37 C.R. (6th) 320, 141 C.R.R. (2d) 112, 69 W.C.B. (2d) 351 (C.A.); R. v. Koenders, [2007] B.C.J. No. 1543, 2007 BCCA 378, 244 B.C.A.C. 271, 221 C.C.C. (3d) 225, 74 W.C.B. (2d) 152; R. v. Nguyen, [2007] O.J. No. 3570, 2007 ONCA 645, 229 O.A.C. 71, 51 C.R. (6th) 356, 76 W.C.B. (2d) 298, 227 C.C.C. (3d) 262, 162 C.R.R. (2d) 34 Statutes referred to Criminal Code, R.S.C., 1985, c. C-46, s. 718(b) [as am.] [page24 ]

Kevin Wilson, for appellant. Linda Tang, for respondent.

[1] BY THE COURT: -- Mr. Song pleaded guilty to a charge of production of marijuana. He received a 12-month conditional sentence [See Note 1 below] from which the Crown seeks to appeal, arguing that a period of incarceration was required in the circumstances.

[2] Those circumstances involved a large-scale marijuana grow operation in a residential area. Over 1,400 marijuana plants were seized. The operation also involved a hydro bypass and the theft of electricity for which Mr. Song agreed to pay the sum of $14,866.66 to Hydro One Brampton as restitution.

[3] On behalf of the Crown, Mr. Wilson acknowledges that to succeed he must show both that the trial judge made an error, or errors, in principle and that the sentence imposed was demonstrably unfit. The Errors in Principle

[4] The sentencing judge made at least three errors in principle, in our view.

[5] First, he ignored or failed to give effect to the jurisprudence emanating from this court in cases such as R. v. Jacobson, 2006 12292 (ON CA), [2006] O.J. No. 1527, 207 C.C.C. (3d) 270 (C.A.), at para. 31, and R. v. Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570, 227 C.C.C. (3d) 262 (C.A.), at para. 46, to the effect that conditional sentences will be rare -- even for first offenders -- in cases involving large residential marijuana grow operations. In this regard, he said:

Well, the law as I understand it in this area is that the practice . . . perhaps rather than some of the utterances that have been made in different cases in the Court of Appeal is one largely of deference to the trial judge. I have been unable to find myself, nor have I been referred to a case where the Ontario Court of Appeal has substituted a term of real incarceration when a conditional sentence has been imposed in a case such as this. And I have been doing these cases for a long time . . . It is a matter of local practice and it is a matter of deference by the appeal court, or certainly by our Court of Appeal, which is the one that matters to us, as to what happens to someone in these circumstances. [page25 ]

[6] Here, as we shall explain, however, the sentencing judge turned the principle of deference on its head. He treated it not as a recognition of his front-line connection to the community and of his proximity to the dynamics of the proceeding, but rather as leave to impose with impunity a sentence based on his personal views of national drug policy, about which more will be said shortly. This was plainly wrong and constituted an unreasonable exercise of discretion.

[7] Secondly, the sentencing judge refused to apply both the provisions of the Criminal Code, R.S.C. 1985, c. C-46 and binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at an appropriate sentence in cases of this nature: Criminal Code, s. 718(b). See, also, R. v. Chen, [2007] O.J. No. 1153, 2007 ONCA 230, at para. 2; Nguyen, at para. 47; R. v. Dawson, 2004 6662 (ON CA), [2004] O.J. No. 3302, 189 O.A.C. 147 (C.A.); R. v. Koenders, 2007 BCCA 378, [2007] B.C.J. No. 1543, 221 C.C.C. (3d) 225 (C.A.), at paras. 20-21.

[8] Yet the sentencing judge discounted general deterrence, to the point of suggesting it would be "insane" to consider it. For example, in the course of an exchange with Crown counsel and in his reasons, he made the following comments:

During Submissions:

Crown: . . . I think there will be a general deterrence.

The Court: What's your basis for saying that? Because nobody has been deterred. People have been going to jail for drug offences for -- for a couple of generations now and the drug -- the drug plague is worse than it ever was.

Crown: Well, there's -- yes. There's no statistical . . .

The Court: If -- if something doesn't work, do I try doing it again and again to see if it does work?

Crown: I would . . .

The Court: I think there's . . .

Crown: There's no way of knowing . . .

The Court: Isn't that the definition of insanity?

Reasons:

And as I commented in submissions from counsel . . . I do not understand the idea of deterrence in this area. I do not know that there are, for example, fewer grow operations in Hamilton than there are in Brampton, even though you are likely to go to jail for real in Hamilton and less likely to do so here. I do know that in the United States, which makes us look like we are all living in Northwestern Europe by comparison, a country which has huge numbers of people serving life without parole for growing marijuana or trafficking in moderate amounts of it, that drugs are as available there, or [page26 ]perhaps more available than they are in jurisdictions where the laws are more lenient. I am given to understand the chances of a Dutch teenager smoking marijuana are substantially lower than they are of an American teenager smoking marijuana. And the Dutch teenager can walk down to the corner and get it at a coffee shop.

[9] There was no evidence to support any of these observations.

[10] Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands. And this is the final error we wish to underline.

[11] The sentencing judge's reasons make it clear -- albeit in breezy and colourful fashion -- that he personally has little use for a sentencing regime that seeks to cope with marijuana offences by relying upon principles of deterrence and by the imposition of "real" jail sentences. This is reflected in the passage above, for example, and reinforced in the following excerpts:

The aggravating factors in a case like this are really the things that are incidental to the criminalization of the activity. Sources as conservative as The Economist Magazine and the Fraser Institute think-tank in this country, which are very, very conservative organizations maintain that drug prohibition is an absolute failure and that we would do less damage to ourselves if the whole undertaking were dismantled.

This is particularly appropriate in the case of marijuana, according to their arguments, because really what we're doing by prohibiting the production and consumption of marijuana is giving the Hell's Angels several billion dollars worth of income every year which is then turned into investments in what would otherwise be legitimate businesses.

So I quite frankly, simply, do not buy into the idea that by treating individuals like this harshly notwithstanding their lack of a record and the nature of the substance that they were producing that I am going to improve things at all. Likewise, the issue with home invasions, if this were not illegal then there would not be the home invasions. So, it is not an intrinsic aspect of growing marijuana that people are going to bust in on you with guns and try and take it away from you, it is rather a function of the fact that it is illegal.

[12] And, later in his reasons, he continued:

The really important factors in this case are that this is the least harmful drug covered by the Controlled Drugs and Substances Act. The Supreme Court of Canada had to basically ignore the harm principle, the John Stewart Mill fundamental principle of criminal law in order to uphold these laws and then promptly readopted it again in a subsequent case involving Montreal sex clubs.

[13] Whether these views have merit is a debate for another forum -- one in which judges do not participate. Personal diatribes of the nature engaged in by the sentencing judge here are unhelpful, however, and demonstrate to us a lack of objectivity [page27 ]that undermines the deference generally afforded to judges. The principle of deference is not a license for the sentencing judge to defy settled jurisprudence, ignore the principles of the Criminal Code, or use his or her dais as a political podium. Fitness of the Sentence

[14] These errors in principle reopen the fitness of the sentence for our consideration at large.

[15] Given the authorities referred to above, and applying conventional principles of sentencing, we find it very difficult to conclude that this is one of those rare cases where a conditional sentence is appropriate. Mr. Song was engaged in a large-scale commercial marijuana grow operation involving more than 1,400 plants worth a considerable amount of money, on any estimation, in the market. Even the trial judge acknowledged that the grow operation "might have yielded a fair amount of money eventually". The enterprise was carried on in a residential area and featured the theft of a considerable amount of electricity through a hydro bypass. While Mr. Song did plead guilty and had no prior criminal record, there was little else of a mitigating nature, and much of an aggravating nature, in the circumstances. Unlike in other cases, for example, there were no issues of ill-health, dire financial need or addiction to explain the operation. It was a purely commercial venture. Mr. Song was the person setting up a nd running the operation and held a significant degree of responsibility for it.

[16] Nguyen was a somewhat similar case on the facts. There, this court upheld a sentence of 15 months incarceration and a hydro restitution order of $10,000. In doing so, LaForme J.A. wrote, at paras. 47-48:

This was a large scale marijuana grow operation. The warrant yielded 1,121 plants and 18 pounds of harvested marijuana. As well $10,000 of electricity was stolen during the operation. The trial judge determined that these circumstances required the need for denunciation and general deterrence that could not be achieved through a conditional sentence. She was entitled to do so. This is not one of the rare cases.

The trial judge, in my view, was also entitled to decline to impose a conditional sentence in light of the evidence of the increasing prevalence of this form of offence in the local community and the danger caused by the hydro by-pass: see R. v. Nguyen, Khuong Van, [2002] O.J. No. 2480 (C.J.); varied on other grounds, [2002] O.J. No. 5490 (C.A.). It is important to note that trial courts have observed that there is an increase in large-scale marijuana grow operations with accompanying violence and threats of violence that courts must respond to. For example, see R. v. Nguyen, Manh Hung, [2006] O.J. No. 1607 (C.J.). (Emphasis added) [page28 ]

[17] We agree with these observations and find them applicable to this case. Not only did the trial judge fail to respect these and other jurisprudential guidelines, he acted on the very opposite principles. This is not one of those rare marijuana-grow- operation cases where a conditional sentence would have been appropriate.

[18] The dilemma we face, however, is the practical reality that Mr. Song has completely served the sentence imposed on him. This court is reluctant to send people to, or back to, prison in such circumstances. Had we been dealing with this matter de novo at trial, a period of incarceration would clearly have been warranted. Indeed, had the matter come to us in a timely fashion before the conditional sentence had been served, we would have imposed a custodial term.

[19] In the end -- without taking away from any of our observations above -- we are not persuaded that it would serve the interests of justice to send Mr. Song to prison at this point. Accordingly, while leave to appeal sentence is granted, the appeal as to sentence must be dismissed.

Appeal dismissed.

Notes

Note 1: After being credited for six months of pre-trial bail.