Court File and Parties

Court File No.: Cayuga - 1111-998-09-496-00 Date: 2012-04-20 Ontario Court of Justice

Between: Her Majesty the Queen — And — Lee Bick

Before: Justice D.A. Harris

Heard: March 14, 2012 Sentenced: April 20, 2012

Counsel: M. Fowler, for the Public Prosecution Service of Canada R. Timol, for the Accused, Lee Bick

Sentence

HARRIS J.:

[1] Following his trial, I convicted Lee Bick of production of marihuana and possession of marihuana for the purpose of trafficking. Mr. Bick is before me today to be sentenced with respect to these offences.

[2] The Federal Prosecutor suggested that I should impose a sentence of imprisonment for between 18 months and two years less a day, followed by probation for two years. He also requested a mandatory firearms prohibition pursuant to section 109 of the Criminal Code and a DNA order. Finally, he asked for an order for forfeiture of the property seized by police.

[3] Counsel for Mr. Bick agreed that all of the ancillary orders were appropriate but suggested that I should impose a blended sentence combining an intermittent sentence and a conditional sentence.

[4] I find that this is not an appropriate case for a conditional sentence or a blended sentence.

Conditional Sentence Framework

[5] The conditional sentence came into being when section 742.1 was proclaimed in 1996. As the Supreme Court of Canada stated at p. 464 in R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), in enacting this section, "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[6] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[7] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded under the legislation;

2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;

3. the court must impose a term of imprisonment of less than two years;

4. the safety of the community would not be endangered by the offender serving the sentence in the community; and

5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[8] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[9] In Mr. Bick's case, the first four prerequisite criteria have been satisfied. His offences are not excluded under section 742.1. Nor are they punishable by a minimum term of imprisonment. Both counsel agreed that I should impose a sentence of imprisonment for less than two years. Finally, I find that Mr. Bick serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has no prior criminal record and he has complied with the terms of his release and stayed out of trouble since being charged. He should be aware of the degree of police scrutiny that he now attracts. With the appropriate safeguards in place, I am therefore satisfied that there is no danger he would return to crime following the imposition of a conditional sentence.

[10] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, as I said before, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

Sentencing Principles

[11] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[12] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[13] The determination of an appropriate sentence involves attempting to apply a blend of the above principles including specific and general deterrence, denunciation and rehabilitation.

[14] I must specifically consider the impact of section 718.2(e) which provides that,

... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[15] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen (1999), 133 C.C.C. (3d) 385, and said at para. 36 that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[16] At para. 43 in Gladue, the Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the longstanding principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective in achieving those restorative sentencing goals than is sending an offender to jail.

[17] I must also note that the Supreme Court of Canada expressly said in Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

Trafficking Offences and Conditional Sentences

[18] In R. v. Kerr, [2001] O.J. No. 5085 (C.A.) Abella J.A. wrote at para. 13 that:

This court has affirmed the principle that there is no presumption against conditional sentences for trafficking offences in R. v. Wellington (1999), 132 C.C.C. (3d) 470, substituting a conditional sentence for a sentence of fifteen months' incarceration for importing hashish. The court emphasized that the particular circumstances of the offence and the offender should govern.

[19] She then went on to quote from p. 475 of Wellington:

This court has not changed its policy of significant sentences for importing drugs into Canada with the advent of conditional sentences. However, where the sentencing judge determines that the appropriate duration of sentence in all the circumstances is less than two years, then the propriety of a conditional sentence to be served in the community instead of in custody must be considered in the usual manner. Therefore, although statistically conditional sentences will be less frequent in certain types of cases including drug trafficking and importing, the approach which a sentencing court is to take when considering imposing a conditional sentence in any particular case is the same for all offences. The court is not to begin with a rule that the circumstances of the case itself must be rare or unusual. Rather, each case must be approached on the basis that it will be considered on its particular facts taking into account the nature of the offence, the circumstances surrounding the commission of the offence, as well as the personal circumstances of the offender.

[20] It is clear to me that there is likewise no presumption against conditional sentences for the offences committed by Mr. Bick.

[21] The Federal Prosecutor cited several decisions of the Ontario Court of Appeal that all state that conditional sentences will be rare, even for first offenders, in cases involving large residential marihuana grow operations.

Facts of the Offence

[22] I note however that Mr. Bick was growing his marihuana in a commercial property. I note also that there was no hydro bypass.

[23] Having said that, I also note that this was a well-planned and carefully executed commercial venture.

[24] Mr. Bick purchased the property and converted it to grow marihuana.

[25] As per the Agreed Statement of Facts, the police located an active indoor cannabis marihuana grow operation inside one locked room within the commercial building.

[26] The marihuana plants were planted in soil with pots. There were four lighting systems (four 1000 watt light bulbs, four ballasts, four metal shrouds hanging from the ceiling), as well as a large filter, venting, timers, and fertilizer/grow food.

[27] Police counted 2,074 cannabis marihuana plants (665 plants, about one to two inches tall, 88 plants about six to twelve inches tall, 1,097 plants about two to four inches tall, 56 plants about two to three feet tall, and 168 plants about eight to twelve inches tall). Police also located approximately seven pounds of cannabis marihuana shake in a garbage can within the central unlocked room.

[28] Police also located a locked vault inside the building. Entry was eventually made, and another large-scale marihuana grow was seen inside that vault. Police observed marihuana plants were planted in soil with pots. There were thirty-two lighting systems (thirty-two 1000 watt light bulbs, sixteen ballasts, thirty-two metal shrouds hanging from the ceiling), as well as four large charcoal filters, venting and timers. Police counted 1,344 cannabis marihuana plants, all at approximately two to three feet in height with bud.

[29] Police seized approximately $18,000.00 worth of grow equipment from the scene.

Personal Circumstances of the Offender

[30] The Pre-Sentence Report tells me the following about Mr. Bick.

[31] He is 36 years old.

[32] He has no prior criminal record.

[33] He is married and he and his wife have two children.

[34] Mr. Bick is the sole breadwinner for the family. He has two jobs. He works approximately 50 hours per week at one job and 24 hours per week at the other.

[35] He experimented with marihuana at the age of 19 and used it on a social basis for about one year. He never used any other drugs and he no longer uses marihuana.

[36] In the circumstances, I recognize the need to consider the likelihood that Mr. Bick will be rehabilitated and never offend again.

[37] However, I also recognize the need to send a strong message to like-minded individuals that running a commercial marihuana grow operation of the magnitude found here will not be tolerated and in fact will result in significant penalties.

[38] There was little of a mitigating nature and much of an aggravating nature here. In that regard, I note the comments of the Ontario Court of Appeal in R v. Song, 2009 ONCA 896, [2009] O.J. No. 5319 (Ont. C.A.) at para. 15 to the effect that "Unlike in other cases, for example, there were no issues of ill-health, dire financial need or addiction to explain the operation". These comments are equally applicable here.

[39] I note that the Pre-Sentence Report here refers to the family facing financial strain as Mr. Bick is the sole breadwinner and works two jobs. I do not however equate that with the dire financial need referred to by the Court of Appeal in Song. Certainly, Mr. Bick had sufficient financial means that he was able to acquire the property and the equipment needed to grow marihuana here.

[40] I note as well that Mr. Bick has expressed no remorse for his offences. On the contrary, he has continued to deny his guilt in his comments to the author of the Pre-Sentence Report. I am aware that I must not treat this absence of remorse as an aggravating factor on sentencing but it certainly eliminates one reason for me to reduce the sentence that I would otherwise impose.

[41] I admit that I was somewhat taken aback by the comments in the Pre-Sentence Report since almost all of the facts were admitted in this case. The only issue really was the unsuccessful application to exclude most of the evidence pursuant to the Canadian Charter of Rights and Freedoms. This application was dealt with by me at R. v. Bick, [2011] O.J. No. 4417 (Ont. C.J.).

Sentencing Decision

[42] In the end, the simple facts of this case are that this was a purely commercial venture of significant magnitude. Mr. Bick planned it. He acquired the property. He obtained the equipment. He set up and ran the operation and was responsible for it.

[43] I find that in these circumstances, jail well beyond the intermittent range is the only appropriate sentence. More particularly I find that imprisonment for one year is appropriate. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[44] Accordingly I sentence Mr. Bick to imprisonment for one year on each charge, concurrent. That will be followed by probation for three years.

[45] The terms of the probation will be that Mr. Bick will:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days of his release and thereafter, when required by the probation officer and in the manner directed by the probation officer;

5. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

6. not associate or communicate directly or indirectly with anyone known by him to have a criminal or youth record, except for members of his immediate family;

7. abstain absolutely from the purchase, possession or consumption of illegal drugs.

Ancillary Orders

[46] I am also making an order pursuant to section 109 of the Criminal Code and for the next 10 years, Mr. Bick may not own, possess or carry any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

[47] These are secondary designated offences. In the circumstances, I am making an order pursuant to section 487.051 of the Criminal Code authorizing the taking, from Mr. Bick, of any number of samples of one or more bodily substances including blood that is reasonably required for the purpose of forensic DNA analysis. That will be done today.

[48] I already made a forfeiture order on the last day.

[49] Finally, in light of the time to be spent in custody, I waive the surcharges.

Released: April 20, 2012

Signed:

Justice D.A. Harris