Court File and Parties

Citation: R. v. Maloney, 2011 ONCA 821 Date: 2011-12-22 Docket: C53799 Court of Appeal for Ontario

Before: Rosenberg, Sharpe and Juriansz JJ.A.

Between:

Her Majesty The Queen Respondent

and

Sean William Maloney Appellant

Counsel: Sean Maloney, in person Kevin Wilson for the respondent

Heard: November 7, 2011

On appeal from conviction and sentence by Justice Bordeleau of the Ontario Court of Justice dated May 27, 2011.

Reasons for Decision

By The Court

[1] On May 27, 2011, the appellant pleaded guilty to one count of possession of marihuana for the purpose of trafficking. Bordeleau J. sentenced the appellant to 30 days imprisonment to be served intermittently and 11 months probation. The appellant initially appealed his conviction. At the hearing of that appeal, with the consent of the Crown, time to appeal sentence was extended.

[2] The appellant’s conviction appeal raises the same grounds of appeal that were argued in the McCrady et al. and in the Parker appeal. In particular, the appellants’ arguments and his situation mirror those of the appellants McCrady and Hearn. For the reasons set out in those decisions, which are released concurrently with this decision, the appeal from conviction is dismissed.

[3] As to the sentence appeal, the facts of the offence are that on June 6, 2010, the appellant and two others were in a vehicle near Casselman heading towards the Quebec border. For reasons that are not necessary to explore, a police officer stopped the vehicle. The appellant handed a bag to the police officer that contained 521 grams of cannabis marihuana and 55 grams of cannabis resin. The appellant used cannabis for medicinal purposes. He suffers from back pain as a result of lumbar scoliosis. The cannabis helps relieve the symptoms. At the time of the offence, the appellant did not have an authorization to possess marihuana issued under the Marihuana Medical Access Regulations, S.O.R.,/2001-227.

[4] During his oral submissions to this court, the appellant explained the difficulty he has had in finding a physician in his home province of Quebec to assist him in applying for an ATP. Given the way this allegation was raised at the hearing of his appeal, without supporting material, we are not able to address the merits of that position.

[5] However, 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. Crown counsel did not oppose this disposition.

[6] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence of imprisonment reduced to time served. We see no reason for the period of probation and that order will also be struck out.

Signed: "M. Rosenberg J.A." "Robert J. Sharpe J.A." "R. G. Juriansz J.A."

RELEASED: "MR" DECEMBER 22, 2011