BARRIE COURT FILE NO.: 14-036

DELIVERED ORALLY: 20160616

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.M.

Defendant

S. Dawson, for the Federal Crown

A.N. Young and R.J. Morhan, for the Defendant

HEARD: March 30, 2016

REASONS FOR SENTENCING

MULLIGAN J.:

Introduction

[1] On June 30, 2014, S.M. pleaded guilty to one count that he “did unlawfully produce a substance included in Schedule 2, to wit: cannabis marijuana, contrary to section 7(1) of the Controlled Drugs and Substances Act”. The sentencing hearing was adjourned on two bases. First, a pre-sentence report was ordered. Second, the defence gave notice that it would challenge the constitutionality of the minimum sentence regime pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (CDSA), s. 7(2)(b)(i). That section imposes a mandatory minimum sentence of six months’ imprisonment for the production of between 6 and 201 marijuana plants, for the purpose of trafficking. The Crown gave notice that it would seek this minimum period of imprisonment in accordance with the requirements of s. 8 of the CDSA.

[2] By way of background, and as both counsel point out, Durno J. dealt with a constitutional challenge to a minimum sentence in R. v. Vu, 2015 ONSC 5834, and concluded, at para. 267:

The mandatory minimum sentences imposed by ss. 7(2)(b)(i)(ii) and s. 7(3)(c) are inconsistent with s. 12 of the Charter and are therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.

It is understood that the Crown has filed a Notice of Appeal with respect to that decision.

[3] The matter was adjourned on numerous occasions for the purpose of scheduling the defence’s constitutional challenge argument. Just before the return of the application, the Crown notified the defence that it was withdrawing its notice and was no longer relying on the minimum sentence provisions of the CDSA. This rendered the constitutional challenge moot. However, the defence opposed the abandonment of the constitutional challenge and argued that the matter should proceed in the face of mootness. The defence acknowledged that it was a discretionary decision as to whether or not such an argument should proceed, but submitted that it was in the public interest that this constitutional issue be resolved in a case where both sides had prepared arguments for a judicial determination on a full record.

[4] For reasons set out in a companion decision to this sentencing decision, the defence application to hear the constitutional argument in the face of mootness was dismissed. I therefore will now proceed with the sentencing decision with respect to S.M..

Circumstances of the Offence

[5] Acting on a search warrant, the police conducted a search of S.M.’ residence in Midland. The search revealed 29 marijuana plants growing in a cordoned-off section of one of the bedrooms of Mr. S.M.’ home. Mr. S.M.’ 13-year-old daughter also resided in the home with him. He acknowledged growing marijuana for his own use and selling off small surplus quantities to his friends, which defence counsel described as “social trafficking”.

Circumstances of the Offender

[6] The court received a generally positive pre-sentence report about Mr. S.M.. At the time of the offence, Mr. S.M. was 43 years of age. He resided in his own home in Midland, Ontario, with his 13-year-old daughter, of whom he had sole custody. Mr. S.M. has no criminal record and pleaded guilty.

[7] Mr. S.M. had difficulty with drugs growing up, describing himself as a functional drug addict until he was in his twenties. He left high school early, but subsequently earned his grade 12 through the Adult Learning Centre. He was successfully employed in Midland with various employers. More recently, he was a licensed security guard from 2007 until his company terminated him when it became aware of these charges in 2014. He now works for himself in his own janitorial services company.

[8] Years ago, Mr. S.M. had a workplace accident and was off work for two years. He was prescribed pain medication, and over the years, continued to self-medicate by using and growing marijuana.

[9] Recently, he has seen a doctor for supportive counselling, and continues to be tested and has been drug-free since 2013.

[10] The pre-sentence report makes it clear he was cooperative with police at the time of his arrest. As the author notes in the report:

Const. Juneau advised the subject was very cooperative with him throughout the investigation, and did provide an inculpatory statement. He believes a bit of court leniency would be warranted, if possible. The subject was cooperative with police at all times during their investigation. He presented in a polite and cooperative manner for the purpose of this report. He expressed remorse for his criminal behaviour and for the impact and consequences it had not only for himself, but also for his daughter and other members of his immediate family.

[11] The report notes that the Children’s Aid Society was involved with Mr. S.M.. Because he had sole custody of his daughter, she was removed from his residence and placed with his parents for a time. His daughter has since been returned to his residence and there are no current child protection issues. Mr. S.M. has the support of his parents and 15-year-old daughter who filed letters of support.

Sentencing Considerations

[12] Both Crown and defence made helpful submissions as to the appropriate sentence that the court should impose for this offender.

[13] The Crown seeks a minimum sentence of six months’ imprisonment. The Crown acknowledges that Mr. S.M. has no record and pleaded guilty to the offence in circumstances where the number of plants found (29) did not grossly exceed the maximum number (200) for which the minimum sentence could be sought if the Crown relied on the notice.

Provisions of the CDSA

[14] The Crown points out several aggravating factors, including that Mr. S.M. was growing marijuana and selling some to friends in his residence where his 13-year-old daughter also resided.

[15] The Crown relied on the following cases. In R. v. Sears, 2006 SKCA 137, 289 Sask. R. 24, the Court of Appeal increased a conditional sentence from 12 months to 18 months for an offender who was found to be in possession of a number of plants valued at $30,000. The offender was growing marijuana for his own use and for sale to acquaintances. In increasing the period of the conditional sentence, the Court of Appeal noted the offender’s exemplary conduct post-offence.

[16] In R. v. Paldus, 2007 ONCA 632, 228 O.A.C. 309, the Ontario Court of Appeal reduced the trial judge’s sentence of 18 months’ imprisonment to 12 months’ imprisonment for an offender with a previous record, who was found to have 100 marijuana plants in his possession.

[17] In R. v. Duong, 2003 CarswellOnt 3232, Kenkel J. imposed a sentence of 10 months’ incarceration. The offender was found to have 200 plants in his home, which was described as a “grow lab”. There was an illegal hydro bypass in place. The offender resided in the home with his children. The accused had no criminal record and pleaded guilty. Among the aggravating factors noted by the Court were the sophistication of the enterprise, the potential profits involved, and the association with organized crime.

[18] In R. v. Prior, 2015 ONCJ 141, Justice West of the Ontario Court of Justice imposed a suspended sentence and a two-year period of probation. Mr. Prior had a previous record and was found to be in possession of 99 marijuana plants. The court noted that Mr. Prior dealt with severe pain on a daily basis due to a prior serious accident. He had previously held licenses to use marijuana to manage his pain. These licenses were not current at the time of his arrest. The decision notes that he entered a plea of guilty to production or cultivation of cannabis marijuana.

Position of the Defence

[19] The position of the defence is that a period of incarceration is not warranted for S.M. in the circumstances of this case. Both Crown and defence acknowledge that a conditional sentence is no longer available. The defence submits that a period of probation can have much the same effect on an offender, in terms of his management in the community and the supervisory conditions that can be placed in a probation order.

[20] The defence points out that Mr. S.M. has no previous record and is the sole supporter of his daughter. He has already paid a heavy price for this offence. The CAS was initially involved with his daughter, he lost his employment when his employer learned of this offence, and he later he lost his home due to financial pressures brought about by a period of unemployment. Since his loss of employment, he has established his own janitorial business where he works seven days a week to try to make ends meet for himself and his daughter. He no longer uses alcohol or marijuana, as evidenced by the drug testing he has voluntarily undergone over the previous months. He was cooperative with the police, and his inculpatory statement to the police elevated this charge to one of trafficking. He was growing marijuana, at least in part, for self-medication purposes due to chronic pain. There was no illegal consumption of hydro or the elevated safety risks that hydro bypassing often creates. He entered a plea and expressed remorse for this offence.

[21] The defence pointed out a number of differences in the cases relied upon by the Crown. For example, in Sears, the court increased a conditional sentence, a sentence which is no longer available here. In Paldus, the offender had 100 plants in his possession and had a criminal record. There was no medical context.

[22] In Duong, the offender had 200 plants in his possession and was operating his grow-up by way of an illegal hydro bypass.

[23] In the context of its proposed constitutional argument, the defence canvassed a number of cases across Canada to determine fit sentences in circumstances similar to Mr. S.M.. The defence made particular reference to R. v. MacNearney, 2014 NWTSC 22. The offender had 20 plants in his home, and shared them with friends. The court imposed a conditional sentence, which was then available, finding the offender unlikely to re-offend.

[24] In R. v. Atwell, 2007 NSPC 60, 259 N.S.R. (2d) 200, the offender had 40 to 60 plants. A conditional sentence was imposed in circumstances where the court found that it was a small scale and not a sophisticated operation.

Aggravating Circumstances

[25] Mr. S.M. was growing marijuana in his home, a home that he shared with his 13-year-old daughter, thus exposing her to criminal activity. Although he was growing marijuana for his own use for pain management, he was also selling surplus to his friends, so there was a profit motive.

Mitigating Circumstances

[26] There are a number of mitigating circumstances at play here. Mr. S.M. is a first-time offender. He pleaded guilty to the offence before the court and expressed remorse. He now works in his own janitorial business seven days a week to support himself and his daughter. He has taken advantage of addiction counselling available to him, and has remained drug and alcohol-free since shortly after this charge, as confirmed by the voluntary screening tests he has undergone. He has positive family support.

Principles of Sentencing

[27] Parliament has now codified many former common law sentencing principles in the Criminal Code. The fundamental purpose of sentencing, described in s. 718 of the Code, is “to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.”

[28] The Code sets out six objectives for sentencing judges to consider at ss.718(a) to (f):

(i) to denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;

(ii) to deter the offender and other persons from committing offences;

(iii) to separate offenders from society where necessary;

(iv) to assist in rehabilitating offenders;

(v) to provide reparations for harm done to victims or to the community; and

(vi) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

Inflationary Floor

[29] In its mootness argument, the defence submitted that Parliament’s decision to create a minimum sentence of six months for offences involving growing more than five marijuana plants creates an inflationary floor that will warrant consideration by the sentencing judge. The defence argues that the fact the Crown seeks a six-month sentence illustrates the point in Mr. S.M.’ case. However, the Supreme Court of Canada has struck down mandatory minimum sentences, albeit in different factual circumstances: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, and R. v. Lloyd, 2016 SCC 13. As the Supreme Court of Canada noted in Lloyd, at para. 35:

As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to defences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.

[30] As Durno J. noted in Vu when commenting on a six-month minimum sentence, at para. 240:

It is a jail sentence and one that cannot be served on an intermittent basis (Criminal Code, s. 732(1)) or conditionally (Criminal Code, s. 742.1(c) because the maximum sentence for production is 14 years). Immediate temporary absence would not be applicable. A six-month jail term can result in the loss of employment, lost educational opportunities and family disruption.

Conclusion

[31] Mr. S.M. is a first-time offender who expressed remorse and entered a plea of guilty. I am satisfied that a suspended sentence, followed by an 18-month period of probation will satisfy the sentencing principles of specific deterrence and general deterrence. As noted, Mr. S.M. has taken positive steps towards his own rehabilitation over the last three years since being charged with this offence.

[32] I therefore impose a suspended sentence, followed by an 18-month period of probation. In addition to the usual terms of probation, Mr. S.M. is required to abstain from the use of marijuana and the use of any other illicit drugs, to report to his probation officer as directed, and to provide such drug and alcohol screening reports as his probation officer may direct. There will also be a weapons prohibition order under s. 109 of the Criminal Code.

Delivered orally on June 16, 2016

NOTE: This ruling, as delivered orally, is to be considered the official version and takes precedence over these written reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the oral version that is the official record to be relied upon.