Court File and Parties

Court File No.: Central East - Newmarket 4911-998-12-08097-00

Date: 2015-07-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Richard Jones

Heard: May 28, 2015

Before: Justice Peter Tetley

Reasons for Sentence

Released on July 9, 2015

Counsel:

• Francesca Monardo, for the Crown
• Brian Greenspan / Naomi M. Lutes, for Richard Jones

TETLEY J.:

Introduction

[1] On March 21, 2013, Richard Jones entered a plea of guilty to one count of production of marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "Act"). A conditional sentence of 18 months duration followed by a period of 18 months' probation with ancillary orders directing that Richard Jones provide a sample of his DNA for profiling purposes and a mandatory section 109(3) lifetime firearms prohibition was imposed on July 7, 2015. At that time, I indicated that written reasons for sentence would follow. These are those reasons.

Gardiner Hearing

[2] At the time of the entry of the plea, counsel were unable to agree on the extent of the offender's grow operation. This factual conflict resulted in what has come to be known as a "Gardiner" hearing, R. v. Gardiner, [1982] 2 S.C.R. 368.

[3] Following a ruling dismissing the offender's application for a stay of proceedings as a consequence of an alleged violation of his section 7 Charter entitlement to life, liberty and security of person and a change of legal counsel, the Gardiner hearing continued on February 12, 2015 with evidence being called by the Crown in an effort to substantiate the asserted extent of the grow operation in the offender's residence.

[4] This factual dispute was subsequently resolved via agreement of counsel. In the resulting agreed statement of fact, the offender acknowledged growing 250 marihuana plants in his residence at 10 Byron Street, Stouffville, Ontario at the time of his arrest on September 28, 2012.

Factual Background

[5] Of the 250 marihuana plants growing in the defendant's residence, 150 plants were characterized as being in the "growing" stage, with the remaining 100 plants being noted as "budding". In total these plants were acknowledged to constitute 9.5 pounds of marihuana.

[6] While harvested drying cannabis, in varying amounts, was found in a number of rooms throughout the offender's home, two rooms in the basement of residence were primarily devoted to the growing of marihuana. One of these rooms housed budding and/or flowering plants, while the other contained plants in the vegetative or growth stage of development. A number of clone plants were found in another room in the basement and two mature "mother plants" were discovered in a basement closet. During the search and subsequent decommissioning of the grow operation, the York Regional Police Service located and seized 17 high-intensity discharge bulbs, five of which were in active use, 5 shades, 3 fans, 5 ballasts and an air conditioner. A number of plastic pots used to grow marihuana were located along with plastic trays and plastic garbage bags filled with potting soil. The bulk of these items were found in the basement to the home with the exception of the drying trays, which were located in various locations throughout the residence.

[7] A ventilation system consisting of fans, an air conditioner and duct work to facilitate air exchange had been set up in the basement of the residence. The Hydro line into 10 Byron Street had not been bypassed, although the police who attended on the execution of the search warrant, noted that the wiring located in the vicinity of the cannabis plants in the basement area was not to Code and constituted a potential fire and/or electrical shock hazard.

[8] In determining the total weight of the seized harvested cannabis to be 9.5 pounds, each cannabis plant was assessed as having a potential yield of approximately 4 to 28 grams. The potential yield for the plants in the offender's home at the time of execution of the search warrant was concluded to be between 75 to 150 ounces. This figure was based upon the 150 cannabis plants that were in vegetative or growth stage at the time of the search without reference to the remaining 100 flowering or budding plants.

[9] Physical evidence confirms that the offender was actively involved in producing hashish from the cannabis that he grew. The yield on production of hashish from cannabis was agreed to vary from between five to 10 per cent. In other words, 10 pounds of marihuana when processed utilizing a water extraction method would result in between a half to one-pound of hashish.

Personal Circumstances of Mr. Jones

[10] Mr. Jones provided medical verification outlining a number of chronic ailments, including the following:

• Degeneration of the meniscus in his left knee leading to early osteoarthritis
• Degenerative disk disease resulting in constant neck pain and stiffness
• Degenerative changes in narrowing in the lumbar-sacral region of the spine resulting in lower back pain
• History of severe chronic obstructive pulmonary disease
• Severe obstructive sleep apnea syndrome

[11] These medical circumstances resulted in Mr. Jones experiencing chronic pain. Dr. Mai, his family physician, confirmed that Mr. Jones was a good candidate for the medical marihuana program as other prescribed medication such as Percocet, Tylenol 3, Celebrex and Mobicox were not able to be tolerated and/or were found not to be effective in controlling his pain.

Reported Cannabis Use

[12] Dr. Forse, Mr. Jones' respirologist and internal medicine specialist, reported that Mr. Jones advised that he had consumed two marihuana cigarettes daily for a period of 20 years but was forced to discontinue this habit after a bout of pneumonia. Mr. Jones reported to the respirologist that he smoked cannabis in order to control his osteoarthritic pain but subsequently began ingesting ground cannabis mixed with honey.

[13] In due course, Mr. Jones began to produce hashish utilizing a water extraction process designed to remove excess leaf material that would otherwise be combustible when smoked.

[14] Since November, 2013, Mr. Jones has been the holder of an authorization to possess cannabis. This authorization was issued by Health Canada pursuant to section 11 of the Marihuana Medical Access Regulations. Pursuant to this authorization, Mr. Jones is permitted to possess 120 grams of cannabis a month or approximately 3.2 pounds over the course of a calendar year.

Sentencing Submissions

The Position of the Crown

[15] On May 28, 2015, submissions to sentence were received from counsel. On behalf of the Crown, Ms. Monardo proposed a sentence of actual incarceration of one year duration as an appropriate penalty on consideration of all of the mitigating and aggravating factors in issue in this matter.

[16] In support of this position, the Crown noted the offender's criminal record, which included a 1998 conviction for the same offence.

[17] The Crown noted the previous offence involved production of between 62 to 72 marihuana plants resulting in a seizure of 1 pound of marihuana versus the 250 plant/10 pound seizure in issue in this case.

[18] Reference was also made to the fact that this grow operation took place in a residential area and that the state of the wiring in the vicinity of the grow operation in the basement of the offender's home was dangerous and presented a fire/shock hazard to others. In support of this sentencing position, reference was made to the Supreme Court of Canada case R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at paragraph 68 where the Court referred to the observation of Sopinka J. in R. v. Kokesch, [1990] 3 S.C.R. 3, that while offences involving marihuana are serious, they are "generally regarded as less serious than those involving hard drugs such as cocaine and heroin".

[19] Note was also made of the comments of Smith J.A. at paragraph 25 of R. v. Hill, 2007 BCCA 309, 221 C.C.C. (3d) 472 at paragraph 21:

. . . It is true that the courts have often drawn a distinction between "hard" and "soft" drugs when sentencing. The consequences for users of hard drugs in terms of addiction and criminal lifestyle have been seen to be more severe than those for users of marihuana. However, as the sentencing judge noted, the marihuana industry in this province has become pervasive. It is a lucrative business permeated by organized crime and it is often accompanied by violence and danger to innocent citizens and other "vile and destructive consequences", to use the words of the sentencing judge. In my view, as one progresses up the chain of the illegal drug industry from the user to the upper levels of trafficking, the effects on sentencing of the consequences at the user-level should carry less weight in relation to the malignant consequences of the industry generally.

[20] Further at paragraph 22:

I do not regard Sopinka J.'s statement in R. v. Kokesch as a rule of law that offences involving marihuana must always be treated less seriously than offences involving hard drugs. Rather, the determination of a fit sentence is a subjective exercise that will depend upon the particular circumstances of the case under consideration. The sentencing judge referred to a number of cases, some involving marihuana, some other drugs. She drew from these cases that denunciation and general and specific deterrence weigh heavily in the sentencing of non-addicted offenders engaged in the illegal drug trade purely for profit. She emphasized the harm caused to society by drug trafficking generally and stressed that this was an ongoing, sophisticated, mid to high level trafficking operation. In my view, she did not err in concluding that the nature of the drug involved was of secondary importance in these circumstances.

Position of the Defence

[21] On behalf of Richard Jones, Mr. Greenspan submitted a conditional sentence of 12-months duration as an appropriate sentence in this matter, followed by a period of probation.

[22] In support of this proposition, a number of cases were cited and reviewed including R. v. Dineley, 2012 SCC 58, 2012 S.C.C. 58; R. v. Smillie, 2000 BCPC 49; R. v. Petrie, 2013 BCSC 1185; R. v. Jacobson, 207 C.C.C. (3d) 270; R. v. Nguyen, 2007 ONCA 645, 227 C.C.C. (3d) 262; R. v. Tran, 2008 ONCA 471; R. v. Vien, 2009 ONCA 729; R. v. Song, 2009 ONCA 896, 249 C.C.C. (3d) 289; R. v. Nguyen, 2013 ONCA 51; R. v. Pimblett, 2014 ONCJ 476; R. v. Chau, [2013] O.J. No. 2827 (SCJ); and R. v. Camuso, [2004] O.J. No. 4606 (SCJ).

[23] In proposing a conditional sentence, Mr. Greenspan referenced the fact that the relatively new statutory minimum jail terms that apply on conviction for production of marihuana do not apply retrospectively to this offence: see R. v. Dineley, 2012 SCC 58, [2012] 3 S.C.R. 272. If the referenced statutory minimums were retrospective in effect, Mr. Jones would be facing a mandatory period of incarceration, by virtue of section 7(1)(ii)(b) of the Act, between 12 to 18 months or perhaps more.

[24] In mitigation of sentence, Mr. Greenspan noted the following factors:

• The defendant's plea of guilty
• Mr. Jones' compromised health status
• The absence of any evidence of commercial trafficking or personal gain from the sale of the marihuana produced
• The offender's two and a half year period of bail compliance without incident
• The absence of any weapons or ties to organized crime
• The fact no children were present in the residence
• The absence of any hydro by-pass
• The fact Mr. Jones is medically authorized to use marihuana for therapeutic purposes
• The fact the marihuana was grown in a residence that Mr. Jones owned
• The absence of any evidence that the offence was committed for the benefit of, at the direction of, or in association with, an organized criminal group

Conditional Sentencing Considerations

[25] The applicable provisions of section 742.1 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code") provide as follows:

Imposing of conditional sentence

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(i) resulted in bodily harm,

(ii) involved the import, export, trafficking or production of drugs, or

(iii) involved the use of a weapon

[26] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court of Canada provided guidelines to be applied when considering the imposition of a conditional sentence. Three pre-conditions are required to be met as follows:

(i) There must be no statutorily mandated minimum term of imprisonment;

(ii) The suspension of the passing of sentence and probation or alternatively a penitentiary term must be discounted as appropriate sentencing options and a sentence of less than two years deemed to be appropriate;

(iii) Service of the sentence in the community must be concluded not to present a danger to others.

[27] In the event the first three threshold criteria are met, the next step is to determine if a conditional sentence would be consistent with the purposes and principles of sentence as defined by sections 718, 718.1, 718.2 of the Code and section 10(1) and (2) of the Act.

[28] Section 718 directs that the fundamental purpose of sentencing is to contribute to respect for the law and maintenance of a just, peaceful and safe society. This goal is accomplished by the imposition of "just sanctions" that address the sentencing principles of denunciation, deterrence, rehabilitation, reparation for those harmed and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done to the victims of their crimes and to the community. The law recognizes that when necessary, offenders must be separated from society.

[29] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This so-called "principle of proportionality" is to be achieved by a sentence that reflects consideration of the personal circumstances of the offender and all relevant aggravating or mitigating circumstances as they relate to either the offender or the offence.

[30] Section 718.2(b) provides that a sentence should be similar to sentences imposed on similar offenders who have committed similar offences under similar circumstances in the past.

[31] Section 718(d) and (e) direct that incarceration should be viewed as the sanction of last resort. It should be imposed only after all other available sentencing options have been considered and determined to be inappropriate.

[32] In determining if a conditional sentence would be consistent with the referenced statutory purposes and principles of sentence, the Supreme Court of Canada has directed that there are no offences to which the conditional sentence regime does not apply. As indicated in Proulx, supra, at paragraph 41, a conditional sentence can be as onerous as one served in jail. Such a sentence can include both punitive and rehabilitative objectives.

[33] At paragraph 115 of Proulx, Chief Justice Lamer states as follows:

. . . a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender. Aggravating circumstances will obviously increase the need for denunciation and deterrence. However, it would be a mistake to rule out the possibility of a conditional sentence ab initio simply because aggravating factors are present. I repeat that each case must be considered individually.

Safe Streets and Communities Act, S.C. 2012, c. 1

[34] The passage of the Safe Streets and Communities Act restricted the available sentencing options for offences such as production of marihuana. The previous seven year maximum sentence for this offence was doubled to a period of 14 years by virtue of section 7(2)(b) of the Controlled Drugs and Substances Act. As a consequence of section 742.1(c) of the Code, a conditional sentence was eliminated as a sentencing option on conviction for any production offence.

[35] In addition to the doubling of the previous maximum sentence for that offence from seven years to 14 years, Parliament enacted mandatory minimum jail terms for individuals who produced five or more marihuana plants. Section 7(2)(b)(iii) directs that the one-year minimum sentence attach to individuals who produce between 200 to 501 plants.

Applicable Aspects of Section 10 of the CDSA

[36] The relevant portions of section 10 of the Act mirror certain of the referenced statutory sentencing provisions in the Code and provides as follows:

Sentencing

Purpose of sentencing

10. (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

Factors to take into consideration

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person

(a) in relation to the commission of the offence,

(i) carried, used or threatened to use a weapon,

(ii) used or threatened to use violence,

(iii) trafficked in a substance included in Schedule I, II, III or IV or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of eighteen years, or

(iv) trafficked in a substance included in Schedule I, II, III or IV, or possessed such a substance for the purpose of trafficking, to a person under the age of eighteen years;

(b) was previously convicted of a designated substance offence; or

(c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, a designated substance offence.

Reasons

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2)(a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

Applicable Case Law

[37] R. v. Smillie, a decision of Gove J. of the British Columbia Provincial Court, involved consideration of a 60 year old offender without a related criminal record. The grow operation in question included 323 plants and featured hydroponic grow equipment. Mr. Smillie had epilepsy and relied on marihuana for a period of many years to assist him in dealing with the physical consequences of this medical condition. Mr. Smillie's wife, with whom he resided, also used marihuana to provide relief from osteoporosis. Some of the marihuana he grew was therefore for personal use and the balance of the marihuana was sold to third parties.

[38] In imposing a suspended sentence and a period of one-year probation, Gove J. concluded that Mr. Smillie was "a bona fide medical marihuana user and not one who simply uses any available drug. Further, it is not disputed that Smillie got involved in the cultivation of marihuana for the purposes of supplying himself and his wife with marihuana for medical use."

[39] Mr. Smillie's military history, career as a writer and unrelated criminal record led Gove J. to conclude that he would not be involved in criminal activity in the future.

[40] In R. v. Petrie, a 2013 decision of the British Columbia Supreme Court, Madam Justice Ker, accepted a joint submission for a 12-month conditional sentence on a plea of guilty to a single count of production of 320 marihuana plants by a first offender.

[41] The plants had been grown in rental accommodation and hydro had been diverted to facilitate the growth of the marihuana.

[42] In accepting the joint submission as to penalty and imposing a 12-month conditional sentence, Ker J. reviewed the purpose and principles of sentence as referenced in section 10(1) and (2) of the CDSA, the principles of sentence as set out in the Criminal Code and a number of related authorities including R. v. Nguyen, 2011 BCSC 1596 and R. v. Wallis, 2007 BCCA 377.

[43] In R. v. Jacobson, 2009, a decision of the Ontario Court of Appeal, Rosenberg J.A., for the Court, substituted an 18-month conditional sentence for the six-month period of imprisonment followed by 18 months' probation imposed by the trial judge on conviction for one count of producing marihuana and one count of possession of marihuana for the purpose of trafficking.

[44] The appellant was 33 years of age and had previously received a conditional discharge for a simple possession of hashish 12 years before.

[45] The appellant was found to be in possession of 376 marihuana plants which were determined to constitute approximately 26.7 kilos of usable product with a market value estimated as being between $130-208,000.00.

[46] From the date of his arrest, the appellant had been involved in a drug treatment program and was acknowledged to be dealing with mental health issues.

[47] In R. v. Nguyen, a 2007 decision of the Ontario Court of Appeal, LaForme J.A., delivered the judgment of the Court in circumstances involving consideration of a conviction for production of marihuana, possession for the purpose of trafficking in that substance, simple possession of marihuana and theft of electricity. The appeal involved consideration of a 15-month jail sentence that had been imposed following trial in a prosecution that featured a hydroponic grow operation involving 1,121 plants, 18 pounds of harvested marihuana and a hydro by-pass.

[48] In affirming the trial judge's sentence, the Court noted as follows:

[46] Justice Rosenberg pointed out at para. 31 in R. v. Jacobson that, "a conditional sentence for cultivation in a residential area would be rare, even for a first offender". The appellant argues that, as a first time offender, this is one of the rare cases where a conditional sentence is appropriate. The trial judge disagreed.

[47] 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.

[48] 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.).

[49] In R. v. Tran, a 2008 Ontario Court of Appeal decision, an 18-month conditional sentence was affirmed in circumstances involving consideration of a "gardener" who did not profit from the operation. A six-month custodial sentence had been imposed by the trial judge with unspecified new medical evidence filed on appeal indicating that the appellant's mental health had deteriorated significantly since the time of sentencing, suggesting that further incarceration would result in extreme hardship for the appellant.

[50] In R. v. Vien, a 2009 Ontario Court of Appeal, an 18-month conditional sentence imposed by the trial judge, following the respondent's pleas of guilty to offences of producing marihuana, possession of marihuana for the purposes of trafficking and theft over $5,000.00, was upheld.

[51] The respondent's guilty plea, employment and family obligations, plus the fact that he had served over 8 months of the conditional sentence, were viewed as persuasive considerations in rejecting the Crown's request that a 9-month custodial disposition be imposed.

[52] In R. v. Song, the appellate court considered the sufficiency of a 12-month conditional sentence followed by 3 years' probation that was imposed on the respondent upon his plea of guilty to a charge of production of marihuana.

[53] The factual circumstances involved consideration of a large scale marihuana grow operation in a residential area. Over 1400 marihuana plants were seized. The operation involved a hydro by-pass with the value of the stolen electricity indicated to be over $14,000.00. On review, the Court of Appeal indicated that the sentencing judge made three errors in principle, including ignoring or failing to give effect to the jurisprudence emanating from the Ontario Court of Appeal in cases such as R. v. Jacobson, supra, R. v. Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570, 227 C.C.C. (3d) 262 at paragraph 46, "to the effect that conditional sentences will be rare - - even for first offenders – in cases involving large residential marihuana grow operations".

[54] Secondly, the sentencing judge was concluded to have refused to apply the sentencing provisions of the Criminal Code and binding jurisprudence mandating that general and specific deterrence be taken into account in arriving at an appropriate sentence in cases of this nature. Specific reference was made by the reviewing court to section 718(b) of the Criminal Code (the statutory provision referencing deterrence as a criminal sentencing objective) and a number of authorities, including R. v. Chen, 2007 ONCA 230, [2007] O.J. No. 1153 at paragraph 2; Nyugen, at paragraph 47; R. v. Dawson, [2004] O.J. No. 3302; R. v. Koenders, 2007 BCCA 378, [2007] B.C.J. 1543 at paragraphs 20-21.

[55] Finally, the Court of Appeal, concluding that this was "not one of those rare marihuana-grow-operation cases where a conditional sentence would have been appropriate", noted the following factors:

• Mr. Song was engaged in a large scale commercial marihuana grow operation involving more than 1400 plants
• The plants were worth "a considerable amount of money"
• The enterprise was carried out in a residential area
• The grow operation featured a theft of a considerable amount of electricity and a hydro by-pass
• While Mr. Song was a first offender, there were no other mitigating considerations such as "ill-health, dyer financial need or addiction to explain the operation" which was viewed as a "purely commercial venture"

[56] In the 2013 Ontario Court of Appeal decision R. v. Nguyen, the Court considered a review of what amounted to a 15-month custodial sentence. This sentence was imposed at trial on a plea of guilty by the appellant to charges of theft of hydro, possession of marihuana for the purpose of trafficking and production of marihuana.

[57] The grow operation in question involved 1200 plants with an estimated fair market value of $1.2 million.

[58] The appellant's role was that of a gardener, in what was described as a large scale grow operation that featured a hydro by-pass.

[59] The sentence imposed at trial was reduced to 10 months' imprisonment less credit for two months of pre-trial custody based on other considerations. The appeal court noted that this was not one of the "rare cases" involving large scale commercial marihuana grow operations where a conditional sentence was warranted.

[60] In R. v. Pimblett, a 2014 decision of Justice Caldwall of the Ontario Court of Justice, a conditional sentence of two years less a day was imposed on an individual with cognitive challenges who had pled guilty to the offences of production and theft of hydro in a grow operation involving 1460 plants.

[61] In R. v. Chau, a 2003 decision of Justice Durno of the Ontario Superior Court of Justice, a 15-month conditional sentence was confirmed in circumstances involving a plea to a production charge relating to a grow operation featuring 653 marihuana plants and a hydro by-pass. The appellant was 32, a landed immigrant from Vietnam, unemployed at the time of the offence, had an otherwise good work record and was currently employed. The respondent had also served four days of pre-trial custody and cooperated with the police during the course of their investigation.

[62] Finally, in R. v. Camuso, a 2004 decision of Fuerst J. of the Ontario Superior Court of Justice, an 18-month conditional sentence was imposed in circumstances involving a first-offender who pled guilty to producing between 560 and 730 pounds of marihuana. During the course of the police investigation, 5.7 pounds of harvest marihuana was also seized. There was no hydro by-pass.

Analysis

Aggravating and Mitigating Factors

[63] The aggravating factors in this case include the following:

1. The offender's cognate criminal antecedents
2. The fact the grow operation occurred in a residential area
3. The potential risk to the lives and safety occasioned by the electrical wiring related to the grow operation, which was found not to be up to standard
4. The size of the grow operation, which featured approximately 250 plants

[64] The mitigating factors in this case are referenced as follows:

1. Mr. Jones pled guilty. This is a tangible and meaningful sign of remorse and reflects his willingness to accept responsibility for this offence. The plea occurred relatively early in the criminal litigation process with the extended history of this prosecution related to the resolution of other ancillary issues
2. Mr. Jones has a myriad of health-related issues and suffers from chronic pain. He is presently authorized to receive medical marihuana. The grow operation was staged in the basement of the home that Mr. Jones owns outright
3. There was no hydro by-pass, no surveillance or security system and no weapons of any kind found on the premises
4. The marihuana and derivatives therefrom were utilized exclusively by Mr. Jones for pain relief
5. Mr. Jones is a man of independent financial means. There was no commercial component to the grow operation

[65] At the time of the commission of this offence, no minimum jail term was prescribed for the offence of production of marihuana. By statute the offence carried a maximum sentence of 7 years. That maximum sentence has now been doubled by virtue of recent legislative amendments as noted previously. The current statutorily prescribed minimum sentence for this offence and the 14 year maximum sentence would eliminate consideration of a conditional sentence had this offender occurred after November 6, 2012.

[66] The prosecution acknowledges that this offence is not deserving of a penitentiary sentence of two years or more. The defence position on sentence recognizes that a sentence involving probation alone would not be sufficient. I agree with counsel that the appropriate range of sentence is imprisonment of a term within the reformatory range.

[67] These conclusions direct that I consider the preconditions for imposition of a conditional sentence of imprisonment.

[68] The Crown opposes a conditional sentence in large measure due to the fact that the defendant has been convicted of this offence before. The presence of the grow operation in a residential area and the related unsafe wiring are other factors indicated by the Crown in support of their request for a one-year period of incarceration.

[69] The Crown notes the substantial change in the sentencing regime governing production sentences which now mandates penal consequences for any grow operation featuring five plants or more.

[70] In my view, there is no significant risk of Mr. Jones re-offending by committing this or any other criminal offence in the future. Similarly, I conclude there is no concern to public safety if Mr. Jones were to be permitted to serve his sentence in the community. Based on the agreed statement of facts, Mr. Jones' involvement in this grow operation was motivated solely by self-interest. He was producing marihuana, albeit without a licence, for the purposes of providing a source of marihuana for self-medication purposes. While this consideration does not excuse his actions, it does help explain them.

[71] There is no evidence of any commercial aspect to this grow operation. There was no profit motive or affiliation with organized criminal activity. There were no counter-surveillance methods employed, no weapons present, no children in the home, no amelioration of someone else's property and no evidence of trafficking.

[72] The relative scale of this grow operation was modest. There was no evidence that anyone else was involved in producing this marihuana other than Mr. Jones.

[73] Mr. Jones spent an overnight in jail prior to his release on bail. He has complied with his bail conditions throughout the protracted litigation history of this case. As Fuerst J. notes at paragraph 32 of R. v. Camuso, supra:

The principles of general deterrence and denunciation are important in fixing sentence for the offence of production of marijuana. My review of the many cases referred to in submissions confirms, however, that the needs of general deterrence and denunciation do not demand that all offences of marijuana production result in a jail term for the offender. Conditional sentences of imprisonment have been imposed on first offenders in cases where anywhere from 80 to over 1000 plants have been seized, and where the grow operation has been described as sophisticated or commercial in nature. The unreported decision of the Ontario Court of Appeal in R. v. Clark released on May 10, 1999, is but one example. In R. v. Veaudry, [2000] O.J. No. 1818, the Ontario Court of Appeal substituted a fifteen month conditional sentence for a jail term of fifteen months. The court commented that to the extent both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration.

[74] While I am mindful of the need for general deterrence and denunciation, particularly in circumstances involving consideration of a repeat offender like Mr. Jones, I conclude that Mr. Jones can be deterred by the imposition of a conditional sentence. Mr. Jones will be subject to the loss or restriction of his liberty through the sentence that I impose today. The sentence will remain in place, in one form or another, for the next four and-a-half years.

[75] I am satisfied, now that he is lawfully in receipt of medical marihuana, that his prospects for rehabilitation are good. Mr. Jones has acknowledged his wrongdoing and has moved appropriately to address the underlying cause of his criminal misconduct. A conditional sentence of imprisonment with appropriate conditions will, in my view, encourage and support these efforts while denouncing the conduct.

The Sentence

[76] In reaching this conclusion, I have taken into account Mr. Jones' criminal record. The record was not filed as an exhibit on sentence. I am mindful of the content of Mr. Jones' criminal record as it became known to me during the course of a separate application subsequent to the receipt of Mr. Jones' guilty plea. The record dates from October, 1997 through to October, 1998. It includes findings of guilt with respect to 18 separate criminal offences. Of significance in this sentencing judgment is the fact that it includes a 1998 conviction for producing marihuana.

[77] In referencing Mr. Jones' criminal antecedents, I am mindful of the fact that he secured an administrative pardon and has not been in conflict with the criminal justice system from 1998 through until the date of this offence, September 28, 2012.

[78] The courts have recognized an extended crime-free period as a factor to be considered on sentence. The Ontario Court of Appeal, in cases such as Graveline, Bezaire and Cassidy, 27 C.R. 287; R. v. Harrell, 12 C.C.C. (2d) 480; and R. v. Harnett, [1974] O.J. No. 788, directs that a long interval, free from serious convictions, is entitled to due weight on consideration of the formulation of an appropriate sentence for a subsequent offence. I consider a 14-year hiatus between Mr. Jones' last conviction and the commission of the acknowledged offence before the court to invoke the application of this principle.

[79] For the above noted reasons, I conclude a conditional sentence of 18 months' duration, followed by a period of three years' probation to be an appropriate disposition in this matter. During the first 12 months of the conditional sentence order, Mr. Jones will be subject to strict house arrest. During the final six months of the order, he will be subject to a curfew.

[80] As Mr. Jones has previously been convicted of the offence of producing marihuana, he shall be subject to a section 109 firearms prohibition for life (section 109(3)) of the Code.

[81] Mr. Jones will also be directed to provide a sample of his DNA for profiling purposes.

[82] As sentence was formally imposed on July 7, 2015, I do not propose to detail the additional terms of the conditional sentence order or the terms of the probation order that follows.

Justice P.D. Tetley

Released: July 9, 2015