Court of Appeal for Ontario

Date: August 31, 2018 Docket: C63789 Judges: Watt, Huscroft and Fairburn JJ.A.

Between

Her Majesty the Queen Respondent

and

Randall Judd Appellant

Counsel

Lauren M. Wilhelm, for the appellant Kevin Wilson, for the respondent

Heard and released orally: August 24, 2018

On appeal from: the conviction entered on June 22-23, 2015 and the sentence imposed on December 2, 2016 by Justice Dale Parayeski of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals a sentence of three years imposed upon him after a plea of guilty to a count of production of marijuana. He was also found guilty of possession for the purpose of trafficking in the same controlled substance and ordered to serve a concurrent sentence of imprisonment of six months.

[2] The sentence for production was imposed on a joint submission after the trial judge rejected a challenge to the constitutionality of the applicable minimum punishment provisions of s. 7(2)(b) of the Controlled Drugs and Substances Act.

[3] In this court, the parties are ad idem that the subsequent decisions in R. v. Vu, 2018 ONCA 436 and R. v. Tran, 2017 ONSC 651 are dispositive of the constitutionality of the applicable punishment provisions. It follows that the trial judge's decision in this respect was wrong and we are left to determine the fitness of the sentence imposed.

[4] Before dealing with the issue of fitness, something should be said about an issue raised at first instance and discussed briefly by counsel in this court. That issue concerns the meaning to be assigned to the term "plants" as it appears in the punishment provisions of s. 7 of the CDSA.

[5] In our view, it is unnecessary for us to decide this issue on this appeal. There is no question that this was a sizable grow operation consisting of both plants and clones. Whether the clones are considered as "plants", despite the absence of evidence that there were roots attached to them, or whether they only become "plants" if there are roots attached to them, need not be decided in this appeal.

[6] In this court, Mr. Wilson, with commendable fairness, acknowledged that a two-year sentence would also be fit.

[7] In light of the pre-sentence custody for which the appellant received no credit at trial, his plea of guilty, the significant period on pre-trial release, including several months of house arrest, and in spite of the appellant's lengthy criminal record, we are satisfied that the ends of justice would be met by reducing the sentence imposed at trial to a term of two years.

[8] In the result, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to a term of two years on the production count. The concurrent sentence of six months on the conviction of possession for the purpose of trafficking remains, as do the ancillary orders made at trial.

"David Watt J.A."

"Grant Huscroft J.A."

"Fairburn J.A."