Court File and Parties

Ontario Court of Justice

Date: September 27, 2016

Court File No.: Central East Region 15-25268-02

Between:

Her Majesty the Queen

— and —

Joseph Cary

Before: Justice Peter C. West

Guilty Plea and Oral Submissions heard on: August 23, 2016

Reasons for Judgment released on: September 27, 2016

Counsel:

• Mr. R. Greenaway, for the Crown
• Mr. B. Scott, Counsel for the defendant Joseph Cary

Reasons for Judgment

WEST J.:

The Charges

[1] Mr. Cary pled guilty to production of a substance: to wit hash oil, contrary to s. 7 of the Controlled Drugs and Substances Act and arson by negligence, contrary to s. 436(1) of the Criminal Code.

Crown and Defence Positions

[2] The Crown sought a 90-day custodial sentence to be followed by two years of probation. It was the position of the defence, having regard to the exceptional circumstances which exist in this case, a custodial sentence is not warranted or necessary and the appropriate sentence is a suspended sentence to be followed by probation. In the event a custodial sentence is necessary to address the principles of deterrence and denunciation, Mr. Scott submits a conditional sentence pursuant to s. 742.1 of the Criminal Code can be imposed respecting the arson by negligence. With respect to the production of hash oil, Mr. Scott submits a suspended sentence and probation is the appropriate sentence, taking into account the fact Mr. Cary suffers from chronic pain, for which he has subsequently been approved for and issued a medical marihuana license. Further, his production of hash oil was solely for his own use to control and alleviate his pain.

Facts

The Explosion

[3] On September 29, 2014, an explosion occurred in a shed behind Mr. Cary's home, situated at 242 Gibbons Street in Oshawa. The shed was some distance from the back of Mr. Cary's residence (40-50 feet away). It was approximately the same distance from his neighbour's house, the two properties separated by a wooden fence. Mr. Cary had been using his shed to extract hash oil from marihuana shake. Police discovered a frying pan, a hand held torch and a large lamp that could be raised or lowered. The shed was found by police to be in flames. No damage was caused to any of his neighbours' properties or to the fence.

Evidence Seized

[4] A vial of hash oil was found by a chair in the shed as well as a number of empty vials. A search warrant was obtained for the residence and shed. Inside the residence a little more than 2 kilograms (2,041 grams) of marihuana shake was found. A further 13 grams of marihuana shake was also found together with 147 grams of marihuana and 35 grams of hash oil. A hash oil extraction kit was also found inside the house.

[5] According to a police expert's report, 5-6% of the total amount of marihuana shake would be produced into hash oil. It was the experts opinion there was not sufficient quantity to reach the opinion the possession was for the purpose of trafficking. In fact, the Crown concedes the possession was solely for personal use by Mr. Cary.

Injuries Sustained

[6] Mr. Cary must have been inside the shed when the explosion occurred as he was rushed to the Sunnybrook Hospital burn unit with approximately 60% of his body covered in 3rd degree burns. In addition, Mr. Cary's wife drove their daughter, April, to the hospital as she suffered minor burn injuries. Mr. Cary remained in hospital in critical care until his release from hospital on November 6, 2014. I will deal with the numerous surgeries and continuing rehabilitation Mr. Cary is undergoing later in my reasons. His daughter April was not hospitalized as a result of her injuries. It was not indicated in the facts read into the record by the Crown as to where April was when the explosion occurred. Given the relatively minor nature of her injuries I draw the reasonable inference she was not inside the shed but was somewhere in the backyard, although close to the shed, when the explosion occurred.

Charges Against April Cary

[7] The police charged both Joseph Cary and his daughter, April, with numerous charges relating to the explosion and the discovery of the above-noted quantities of marihuana shake, marihuana and hash oil. As a result of Mr. Cary's guilty plea the charges facing April Cary were withdrawn by the Crown. It is my understanding that upon my sentencing Mr. Cary for the production and arson by negligence the remaining more serious charges of possession for the purpose of trafficking and arson charges are to be withdrawn against Mr. Cary by the Crown.

Personal Background

[8] Mr. Cary is 59 years of age. He is married and has at least one daughter, April, who has a 4 year old daughter. At the time of the explosion April's daughter was living in the Cary residence. Mr. Cary was accompanied by a large group of family members and friends who I was advised by Mr. Scott are very supportive of him.

[9] He has no criminal record and has always been a contributing member of the community.

[10] In 2009 Mr. Cary received open heart surgery at St. Michael's Hospital. At some point he cracked his sternum and doctor's implanted three titanium strips. He was employed with Oshawa Public Utility for 23 years and currently receives CPP disability since 2015 in the amount of $1202 per month. He suffers from chronic pain and has been prescribed both Demerol and morphine to alleviate his pain. Mr. Cary turned to marihuana to assist in controlling and lessening his chronic pain. He found hash oil provided the best results and consequently, he extracted the hash oil from marihuana shake in his shed. He did not apply for a medical marihuana license to grow or use marihuana until after this incident.

[11] Exhibit 2 is a copy of Mr. Cary's medical marihuana license, which expires on October 31, 2016 when he will have to reapply. He has a prescription for 2 grams of marihuana per day.

Medical Evidence

[12] Dr. Alan Rogers, a plastic and reconstructive surgeon at Sunnybrook Health Sciences Centre, Ross Tilley Burn Centre, wrote a report detailing Mr. Cary's injuries, hospitalization, surgeries and continued rehabilitation and prognosis, which was filed as Exhibit 1. Mr. Cary had six extensive surgeries during his hospitalization. His burn wounds involved his head and neck, anterior and posterior torso and bilateral upper extremities, including his hands. Initially he required intubation and mechanical ventilation and manifested a severe inflammatory condition of his lungs referred to as ARDS, which required critical care support for a period of weeks. His hospital stay was complicated by episodes of systemic infection and temporary kidney impairment in addition to the complication of ARDS.

[13] He was discharged from Sunnybrook on November 6, 2014 and admitted to St. John's Rehab Centre, where he stayed for a period of time. In addition to the six surgeries referred to above, Dr. Rogers also performed three reconstructive surgeries on October 2, 2015, January 22, 2016 and April 1, 2016 to improve Mr. Cary's function on account of contractures of burnt areas. Dr. Rogers indicates Mr. Cary is still attending for physiotherapy treatment for the foreseeable future; at present it is twice a week. In addition, further reconstructive surgeries may be required in the future as burn contractures continue to manifest over a period of years. Dr. Rogers opines that incarceration in a custodial facility would compromise Mr. Cary's ultimate medical outcome.

[14] Attached to Exhibit 1 are a series of photographs depicting the extensive burn injuries suffered by Mr. Cary as a result of the explosion.

Sentencing Principles and Case Law

Medical Marijuana Production Cases

[15] I have dealt previously with cases involving individuals who are charged with production of marihuana as a result of chronic pain; see R. v. Prior, 2015 ONCJ 141. In that case the Crown was unable to provide me with a single case that supported a jail sentence for persons charged with producing marihuana for medical reasons. The Crown in this case has not provided any precedents to support their position of a 90-day custodial sentence.

Proportionality Principle

[16] The Criminal Code defines the fundamental principle of sentencing as proportionality. Section 718.1 states:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[17] In R. v. Nasogaluak, 2010 SCC 6, at para. 42, LeBel J., for the Court, held the principle of proportionality:

…requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

Jurisprudence on Medical Marijuana Production

[18] In R. v. Prior, I was provided a number of cases supporting non-custodial sentences for individuals who produce marihuana/hash oil to be used for medical purposes. In R. v. Small, 2001 BCCA 91, the accused had pled guilty in Provincial Court to producing marihuana and was convicted and fined $3000 plus 12 months' probation. Mr. Small had been growing marihuana to sell to the British Columbia Compassion Club Society, at an amount substantially less than its value in the illicit market. The police had seized 31.5 pounds. The Compassion Club was a registered non-profit organization that provided a variety of services to its 700 members, including the sale of marihuana for medical purposes. Over 80 per cent have letters provided by doctors and the balance must satisfy a number of criteria established by the club. Mr. Small was one of 15 marihuana suppliers to the Club and he himself used marihuana for medical purposes. Mr. Small had a previous record for production of marihuana. The British Columbia Court of Appeal reduced Mr. Small's sentence to a conditional discharge with 12 months' probation.

[19] In R. v. Lange, 2002 BCPC 483, the accused was charged with production of marihuana. He was selling the marihuana he produced to a Compassion Club in Edmonton for medical purposes. He was selling the marihuana for a substantially reduced cost but the Crown alleged he was receiving from $500 to $800 a month profit. The accused had a number of convictions for drug-related offences and had received previous sentences of imprisonment, although there was a significant gap between the last conviction and the current charges. The Crown conceded Mr. Lange was not solely motivated by greed as the marihuana produced was being sold for medicinal purposes. The sentencing judge granted a conditional discharge.

[20] In R. v. Maloney, [2011] ONCA 821 the accused was convicted of possession for the purpose of trafficking. Police stopped a vehicle and found 521 grams of marihuana and 55 grams of cannabis resin. The appellant used the marihuana for medicinal purposes, pain associated with lumbar scoliosis. The appellant did not have a license to possess marihuana for medical purposes. He was originally sentenced to 30 days in jail to be served intermittently and a probation order by the sentencing judge. The Court of Appeal reduced the sentence to time served and the probation order was struck. There was no indication in the judgment of what the time served was. The Court made the following comment:

…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.

[21] I am aware of a large number of cases where persons producing marihuana for Compassion Clubs were granted discharges or fines (see R. v. Lucas, [2002] BCPC 268 (three kg of marihuana for Compassion Club: granted absolute discharge); R. v. Hogan, [2003] B.C.J. No. 3196 (growing 26 marihuana plants to alleviate chronic pain: granted conditional discharge); R. v. Simpson, [2008] NSSC 57 (1100 plants, extracting oil and providing to persons with medical illnesses: received a $2000 fine); R. v. Young, [2008] MBPC 50 (80-90 plants, using marihuana for pain from back injury: granted conditional discharge); R. v. Kreiger, [2009] MBQB 321 (after trial convicted of possession for the purpose of trafficking, selling marihuana to persons with medical illnesses, prior record for related offences: suspended sentence and probation); R. v. Tweedy, [2010] O.J. No. 5444 (ONCJ) (possession of marihuana for purpose of trafficking, 1239 grams of marihuana, intending to process marihuana into 60 milligrams hemp oil to be used by friend with terminal cancer: absolute discharge); and R. v. McPherson, [2011] BCPC 482 (673 marihuana plants, accused had a medical condition and was growing marihuana for pain relief for both himself and his wife, 10 months after charges laid the accused and his wife obtained licenses from Health Canada: granted conditional discharge)).

Analysis

Medical Legitimacy

[22] The issue in this sentencing is whether Mr. Cary should be incarcerated in the circumstances of this case. The Crown does not take issue with Mr. Cary suffering from chronic pain as a result of his open heart surgery and work injury. There is no doubt he currently suffers significant pain from the injuries he sustained in the explosion. The Crown accepts there was no commercial benefit sought by Mr. Cary in growing marihuana. His production of hash oil was solely for medical purposes.

[23] The legitimacy of Mr. Cary's chronic pain is supported by his applying for and obtaining a medical marihuana license to possess marihuana to alleviate his symptoms of pain. The complicating issue in Mr. Cary's case is the fact his production of hash oil caused an explosion which set fire to the shed as well as caused significant injuries to Mr. Cary, resulting in his being hospitalized for several months. His daughter, who apparently was in the backyard close to the shed, received only minor injuries. However, these facts demonstrate the seriousness of Mr. Carey's conduct.

Exceptional Circumstances

[24] Although production of marihuana and arson by negligence usually attract a sentence that addresses the sentencing principles of deterrence and denunciation, it is my view the factual circumstances of this case significantly reduce, if not eliminate, the necessity of imposing a sentence to reflect those sentencing principles. Certainly specific deterrence is not a pressing issue given the significant injuries suffered by Mr. Cary, which necessitated numerous complex and painful surgeries. It is my view the factual circumstances of this case make it a case that involves exceptional circumstances, which have been recognized by the Ontario Court of Appeal as significant mitigation, such that an offence which normally would attract a jail sentence does not as a result of the exceptional circumstances which exist.

First Offender Status

[25] It is also important to note that Mr. Cary is a first offender as he has no prior record. In R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at page 377, Martin J.A. made it clear, that in the case of a first offender, the court should explore all other dispositions before imposing a custodial sentence:

It is the view of the Court that the sentence imposed upon the appellant does reflect an error in principle. In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate. In our view, this offence does not fall within the category of offences where a custodial sentence is the only appropriate sentence to be imposed upon a first offender, nor are there other circumstances which require the imposition of a custodial sentence. [Emphasis added]

[26] In R. v. Priest, [1996] O.J. No. 3369 (Ont. C.A.) Rosenberg, J.A. made the following comments concerning R. v. Stein, supra: (at paras. 18 and 19)

As the Stein case shows, it has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that trial judges consider community-based dispositions first and impose more serious forms of punishment only when necessary. These principles have now been codified in the recently proclaimed sections 718 and 718.2 of the Criminal Code. Section 718 (c) instructs that separation of offenders from society is an appropriate objective of sentencing "where necessary". Section 718.2 (d) directs that an offender should not be deprived of liberty "if less restrictive sanctions may be appropriate in the circumstances".

The principle embodied in now s. 718.2(e) was of particular significance in this case. It 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".

Life History and Community Contribution

[27] Mr. Cary has lived almost 60 years without any involvement with the police and has lived his life as a contributing member of the community, gainfully employed with Oshawa Public Utility, who together with his wife raised and provided for his family. Later in life he suffered some serious medical conditions, which left him with chronic pain, disabled and unable to work.

Sentencing Decision

[28] It is my view the interests of justice require the imposition of a non-custodial sentence in respect of these charges of production of hash oil and arson by negligence, given the unusual and exceptional circumstances I have outlined above. To impose a sentence of jail would be completely disproportionate to the gravity of the conduct engaged in by Mr. Cary and his motivation and reasons for producing the hash oil. I find any right-thinking member of the community would be of the opinion, given how Mr. Cary has already suffered because of his actions, the principles of deterrence and denunciation could be sufficiently addressed in a non-custodial sentence.

[29] Consequently, I am suspending the passing of sentence and placing Mr. Cary on probation for a period of two years.

Released: September 27, 2016

Signed: Justice Peter C. West