Court File and Parties

COURT FILE NO.: CR-39700-17-51 DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Alexander Just Defendant

Counsel: Paul Syrduk, and M. Dunn counsel for the Crown Leo Russomanno, counsel for the Defendant

HEARD: May 24th, 2018

Reasons for Sentence

LACELLE J.

Introduction

[1] Following the dismissal of his Charter challenges, Mr. Just pleaded not guilty to two counts of production of cannabis marijuana in contravention of s. 7(1) of the Controlled Drugs and Substances Act as well as one count of possession of cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the CDSA. He did not contest the facts presented by the Crown and has accordingly been found guilty based on the evidence presented to the court. Mr. Just is now before me for sentencing.

[2] Given my previous ruling following the decision in R. v. Pham, 2016 ONSC 5312, and the subsequent release of R. v. Vu, 2019 ONCA 436 by the Court of Appeal for Ontario upholding Pham, no minimum sentence applies in this matter.

Factual Overview

[3] The offender, Mr. Just, is a vegetable farmer who lives in a rural area. The offences for which he has been convicted relate to his cultivation of marijuana on farm land he was renting from another farmer as well as on his own residential property.

[4] Officers seized a total of 3775 cannabis marijuana plants at the two properties. The potential yield for this number of plants was estimated at 932 pounds. The street value for a yield of this size is estimated at $1,025,200.00. A further 186 pounds of the finished marijuana product, or “bud”, was seized. It was estimated to have a street value of $204,600. The officers also seized 237 pounds of “shake”, which is the term used to describe cannabis marijuana “trim”. This material is used in the production of cannabis resin, a.k.a. “hash”. The estimated street value of the “shake” that was seized was $53,750.00. Accordingly, the total estimated street value of the cannabis marijuana that was seized was $1,283,550.00.

[5] There is no dispute that Mr. Just was the principal in what was a large scale commercial operation to produce marijuana. In running this operation, the offender also employed four men through the Canada/Mexico Agricultural Workers Program.

[6] There is evidence before me that when one of the officers attended at the offender’s property where the marijuana was being dried, he observed “faulty wiring” in a shed and that “when the large grinder was unplugged it sparked”. This necessitated calling in a Hydro crew. No evidence as to their findings or conclusions was presented to the court.

The Positions of the Parties

The Defence

[7] Counsel for the defence argues that a sentence of 12 months is appropriate. He relies on cases decided before the mandatory minimum sentences for these offences were enacted to suggest that the range of sentence for this kind of offender was between 9 and 15 months. He provides the court with a number of cases to illustrate this range and emphasizes that this case does not present with the significant aggravating fact of a hydro bypass and the ensuing risk to community safety. He points out that this case did not involve a grow op that rendered the property of Mr. McDonald unusable, and that it did not present the risks associated with a grow-op in a residential community. While he concedes that the motive for the offences was greed, he says the greed in selling an illegal product regardless of the risk to the community is entirely absent in this case.

[8] Counsel also highlights the mitigating factors, including the wide degree of support from the offender’s family and the community, his status as a first offender, his compliance with his bail terms, his agreement to narrow the issues and avoid the presentation of viva voce evidence to the court at trial, and his potential for rehabilitation. He argues that the 5 year sentence sought by the Crown cannot be reconciled with other cases with similar offenders where no mandatory minimum sentence has artificially set the floor for the sentence imposed. While he acknowledges that the offender’s role as a principal and the size of the operation mean that the sentence should not fall at the low end of the range, he argues that given the mitigating factors it should also not be placed at the high end.

The Crown

[9] The Crown seeks a sentence of 5 years. Counsel emphasizes the size and scope of the offender’s enterprise and the planning that went into running it. He notes the elaborate production facility the offender had set up on his property, his planning in renting additional fields, and his need to hire four employees to run the operation. The Crown argues that there is no genuine evidence of remorse in this case and highlights the concern in the PSR that the offender exploited foreign workers for his own financial gain. The Crown notes that the offender has been found guilty of not just production of a substance, but possession for the purpose of trafficking, and that this is a significant difference from the cases relied upon by the defence. This difference, and other significant aggravating factors, mean that the range proposed by the defence is not fit.

[10] Like the defence, the Crown provides a number of cases for the court’s consideration. In its view, the case of R. v. Gobran, 2013 ONCA 407 is central to supporting its position. In that case, which also involved a first time offender responsible for a substantial commercial enterprise, the sentence imposed was 5 years.

The Legal Principles

[11] The Criminal Code sets out a number of principles of sentencing which must be considered in determining a fit sentence.

[12] The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should have one or more of the following objectives:

i. To denounce 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 acknowledgment of the harm done to victims and to the community.

[13] In sentencing an offender, s. 718.1 provides that the court must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors. It also codifies the principle of restraint.

[14] I consider as well the principles set out in s. 10 of the CDSA.

The Circumstances of the Offender

[15] The offender is 61 years old. He has no prior record.

[16] The pre-sentence report indicates that the offender grew up in Westmount, Quebec, in a family that was described as upper middle-class. By all accounts it was a loving family and the offender and his siblings remain close. They are now taking turns helping their mother as she has been diagnosed with dementia and requires full time care. The offender has been instrumental in helping his mother and family through this difficult circumstance.

[17] The offender is not in a relationship currently but was recently in a common-law relationship of over twenty years. He also has a son from a former marriage. His son is pursuing studies at university and has a good relationship with the offender, for whom he has provided a letter of support.

[18] With respect to his education and work history, the offender is university educated and has a degree in Business Accounting. He has had a diverse and consistent work history. He and his brother were partners in a vegetable farming enterprise for over twenty years. Unfortunately this venture ended in financial ruin and the relationship with the offender’s brother was ruptured. The evidence before me confirms that the offender declared bankruptcy in 2016.

[19] The relationship between the offender and his brother was repaired in the last few years and the offender is now an employee of his brother’s farm. This work requires him to attend at various farmer’s markets in locations in Ontario and Quebec. The offender reportedly enjoys this work and hopes to stay in the farming industry for the long term.

[20] As an adolescent, the offender attended a private school where he was sexually abused by a teacher. At the age of fourteen he began using hashish as a way to cope with this trauma. It appears he had limited counselling to help him process the impact. The offender reports that as an adult he has experienced depression and suicidal ideation. According to the offender’s brother, however, the offender’s mental health appears stable at this time. The offender reports and his siblings confirm that he does not use any substances.

[21] With respect to the offences, the offender has indicated that he regrets his actions and knows that he should not have gotten involved. He reported that he had been facing some financial distress and had grown marijuana in the past but had never grown that much before. He confirmed he needed to grow more to make it worthwhile and to be able to pay his partners. He reported some pressure on him from organized crimes associates. He said he believed he could make enough money from the crop so that he would no longer have to continue the endeavour. He advised he does not intend on growing again. All the same, the author of the PSR notes some minimization by the offender of his conduct. While many of these comments may be viewed as consistent with the offender’s position about the merits of the police investigation, which view he is entitled to maintain, of some concern to the court is his view that his involvement in the offences was somehow limited by the fact that his employees were involved in the actual cultivation of the plants.

[22] The PSR details the many positive relationships the offender has. This is also evidenced by the many letters of support from the offender’s family, friends, his associates at various farmer’s markets, and Mr. McDonald, the farmer from whom he rented the fields where the majority of the plants at issue in this case were discovered. These individuals speak consistently of Mr. Just as a person who is generous and kind. They describe him as a hard working man who assists those in need. He is described as a good father, son, brother and community member. There is no doubt in reading these letters that Mr. Just has been a contributing citizen and valued member of his family.

[23] The offender described to the author of the PSR the anticipated impact of his imprisonment. His brother would lose his help on his farm. It would also be very difficult for his mother.

Aggravating and Mitigating Factors

[24] I agree with the submissions of counsel for the defence that the following mitigating factors are present in this case:

i. The offender is a first offender; ii. The offender has significant familial and community support; iii. The offender is of prior good character with a strong work ethic and has excellent rehabilitation prospects; iv. While not providing the equivalent mitigation as a guilty plea, the offender did agree to the presentation of documentary evidence by the Crown and the resources required for trial time were saved; v. The offender has abided by his bail conditions for almost four years.

[25] I also consider the following aggravating factors:

i. The offence was motivated by greed; ii. The offender used a federal government program to hire four foreign workers to support his enterprise; iii. The offender was a principal in the operation and his moral blameworthiness is significant; iv. The operation was large and sophisticated and was clearly carefully planned. It involved multiple sites and product with significant street value. The number of plants seized far exceeds 500, an aggravating threshold set by Parliament in s. 7(2)(b)(v) and (vi) of the CDSA; v. The offender used the real property belonging to a third party in committing the offence (see s. 7(3)(a) of the CDSA), albeit the effect of this factor is modest given that no damage resulted to the property and the risk of damage was not the same as if the operation were housed in a dwelling house.

[26] I have considered additional factors said to be aggravating by the Crown. With respect to the allegation that the offender’s enterprise created a safety hazard, while there is some evidence to support this conclusion, the observations of the officer here do not permit me to conclude that a hydro bypass was in place or to ascertain what degree of risk the operation presented. This evidence does not rise to the level of the evidence of risk described in the case law: see Vu at para. 48. It also does not fall within s. 7(3)(c) of the CDSA by reason that the property was not in a residential area.

[27] The Crown also suggests the offender was affiliated with organized crime and that this is an aggravating factor that is not present in other cases like Gobran. It is arguable that it is a fair inference in cases like Gobran and this one that given the size of the operation that there must be some link, somewhere, to organized crime. In this case, I also consider that there are comments by the offender in the PSR indicating he committed the offences because he was experiencing pressure “from organized crime associates”. However, given the absence of any further evidence about the links to organized crime or the nature of the accused’s involvement with any criminal organization, I cannot make a finding as to what the offender’s affiliation was. Aggravating factors need to be proved beyond a reasonable doubt. Given the limited evidence available on this issue, I decline to give the offender’s disclosure to the author of the PSR any weight as an aggravating factor.

[28] With respect to the issue of the offender’s remorse or insight, I agree with counsel for the defence that there is evidence that the offender has acknowledged his wrongdoing, which is positive and pro-social, and yet different than evidence of remorse. I also consider, however, that the evidence also shows that whatever wrongdoing the offender takes responsibility for, his insight into the circumstances and consequences of his offending is limited, if not absent, particularly given his view that the foreign workers he hired were actually responsible for the cultivation of the marijuana. While this is not an aggravating factor, the absence of evidence of remorse or insight contributes to the need for specific deterrence in a sentence: see R. v. Vallada, 2016 ONSC 887 at para. 17.

The Sentences in Similar Cases with Similar Offenders

Cases Relied Upon by the Defence

[29] In support of its position, the defence relies on four cases which either preceded the mandatory minimum sentence regime for these offences, or where that regime was not applied by reason of its unconstitutionality. A review of the facts and sentences imposed is helpful in determining a fit sentence for this offender.

[30] In R. v. Doan, [2011] O.J. No. 4321 (C.A.), the accused had been observed on three successive days for extended periods of time at what was described as a “substantial” and “relatively sophisticated” marijuana grow operation in the basement of a house. The operation included 369 plants. A hydro bypass was used to deliver electricity to the operation. The offender received a sentence of 10 months jail.

[31] R. v. Macsanszky, [2013] O.J. No. 4993 (C.A.), the Court of Appeal for Ontario confirmed a sentence of 9 months for an offender convicted of unlawfully producing and possession of marijuana for the purpose of trafficking and theft under $5,000 of electricity. Few facts are provided in the court’s endorsement. It appears however that the offence involved a marijuana grow-op at the accused’s property and that the whole house had been committed to the grow-op. The offences were driven by greed. The operation was “large” and the value of the marijuana was “significant”.

[32] In R. v. McGee, [2017] B.C.J. No. 2658 (C.A.), the offender was convicted following his guilty plea and admission that he was a principal in a grow-operation involving 601 plants. The grow-op was established in a rental property which was rendered uninhabitable by the operation. The offender had made no restitution to the property owners. Like Mr. Just, the offender was 60 years old and had no prior criminal record. The grow-op had used a hydro bypass and was described as of “average sophistication”. Following his finding that the minimum sentences were not constitutional, the trial judge imposed a sentence of 10 months jail. The Court of Appeal upheld the trial judge’s ruling on the constitutionality of the mandatory minimum provisions involved as well as the 10 month sentence imposed on the offender. However, it noted that the Crown on appeal had not challenged the 10 month sentence imposed. The Court of Appeal found that “at a very minimum” a sentence of between 12 and 15 months should have been imposed given the aggravating factors present in the case, including the fact that the grow-op exceeded 500 plants, the accused was a principal in and profited from the operation, and the operation had rendered the rental property uninhabitable. It also commented at para. 23 on the fact that the illegal commercial production and distribution of marijuana “plagues British Columbia communities”. It noted that the industry is “permeated by organized crime” and “often accompanied by violence”, “danger to innocent citizens”, and other “vile and destructive consequences”.

[33] Finally, the defence relies on R. v. Nguyen, 2007 ONCA 645, [2007] O.J. No. 3570 (C.A.). This case involved a grow-op with 1121 plants which was described as “large scale”. The offender was convicted of production of marijuana, possession of marijuana for the purpose of trafficking, simple possession, and theft of electricity. The Court of Appeal confirmed the sentence of 15 months imposed by the trial judge. The grow-op was located in the accused’s residence in a residential neighbourhood. Police seized 1121 plants and 18 pounds of harvested marijuana. The offender had stolen electricity worth $10,000 during the operation. The Court of Appeal recognized the dangers posed by the use of a hydro bypass. In upholding the trial judge’s sentencing decision, the court also commented at para. 48 that 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”.

Cases Relied Upon by the Crown

[34] The Crown also relies on a number of cases to demonstrate the range of sentence for these kinds of offences committed by similar offenders, including some of those cited by the defence. The most relevant of the additional cases relied upon by the Crown are summarized below.

[35] In R. v. Le, [2015] O.J. No. 1069, the offender was involved in a 5000 plant grow-op. The trial judge rejected the submission that he had been the operating mind of the enterprise, describing him instead as “mainly a broker”, and “middle management at best”. The offender was 48 years old, had no prior record, and was caring for his 87 year old mother and 16 year old daughter, for whom he was the primary caregiver. The trial judge found that while the offender had not been entrapped, an undercover operator had “stimulated” the scheme. The offender was sentenced to 2 years less a day.

[36] Gobran involved a 42 year old first offender who was a principal and operating mind for a “substantial commercial enterprise” worth an estimated value of 1.6 million to 2.5 million dollars. The investigation yielded a seizure of 6000 plants from three active operations. The offender pleaded guilty to the offences, which he was found to have committed for financial gain. The offender had addictions to drugs and gambling. The mandatory minimum sentencing provisions did not apply to the offender, but he was nevertheless sentenced to 5 years in prison. The trial judge found that the offender’s degree of responsibility was a significant factor in sentencing. This sentence was upheld on appeal following the court’s review of similar cases. Those cases included R. v. Ha, 2009 ONCJ 503 (53 year old first offender involved in an operation with 40,040 plants and product estimated at a retail value of $80 million – sentenced to 7 years); R. v. Jowett, [1990] O.J. No. 2911 (C.A.) (Court of Appeal substituted sentence of 6.5 years for an offender who was the operating mind in a multi-year “highly skilled commercial enterprise” that produced over four tons of marijuana); and R. v. Bick, [2012] O.J. No. 1787 (first time offender who pleaded guilty to production and possession of marijuana for the purpose of trafficking, and was involved in growing marijuana in a commercial building “as part of a well-planned and carefully executed commercial venture” where 3,418 plants were seized – sentence 1 year imprisonment).

[37] The offender in R. v. Dao, [2003] O.J. No. 4957 (S.C.J.) was a 28 year old first offender who had immigrated to Canada at the age of 11 after living in a refugee camp. The grow-op was located in a residential neighbourhood and involved 984 plants with an estimated value of between $437,000 and $1.1 million. A hydro bypass was used and some $37,000 in electricity was stolen. There was evidence that the hydro bypass presented a significant fire and safety risk to the community. The offender was sentenced to 21 months imprisonment.

[38] Finally, R. v. Biberhofer and Thomlinson, 2015 ONSC 2609 involved a grow-operation with 1079 plants in a rented property. Neither offender had a prior criminal record. The pair were convicted following a jury trial. The court imposed the mandatory minimum sentence of 3 years for each offender but found that regardless of the mandatory nature of the sentence, a sentence of 3 years was fair and just in the circumstances of the case. The court cited the planned and deliberate nature of the offences, the sophisticated nature of the grow-op, and the evidence it had been in existence for a number of years in justifying its conclusion.

The Appropriate Disposition

[39] As noted in Gobran, and as evidenced by the cases cited by the parties, there is a broad range of sentence for similar offences and similar offenders in the jurisprudence. The cases are consistent in emphasizing the need for a sentence that achieves deterrence and denunciation, and where the facts support it, specific deterrence. Courts in this province and elsewhere have emphasized the risks and dangers associated with the illicit drug trade in their justification of significant sentences for the production and trafficking in marijuana where a large scale operation is involved.

[40] While I am not persuaded that the absence of the aggravating factors of a hydro bypass, the damage to a third party’s property, or other risk to the public places this case in the range of sentence suggested by the defence, I am also not persuaded that the sentence should be as high as in the case of Gobran. At a minimum, this is because the scale of the operation in that case was markedly more extensive than the one here.

[41] I find that the offender’s degree of responsibility for the offences, the scope of the operation involved, and his use of a federal program to enlist four foreign workers to further offences he committed for profit require that a penitentiary sentence be imposed. Giving my best consideration to all the factors at play in this case, the need for a sentence that is the least restrictive in fulfilling the sentencing objectives I have identified, and having regard to the excellent rehabilitation prospects of the offender, I conclude that a global sentence of 2 years is fit.

[42] That sentence will run concurrently on each of the three counts before the court.

[43] I see no sentencing objectives that will be served by a probation order. Given this, and given the time the offender has been bound by bail conditions, I decline to place him on probation following the completion of his custodial term.

[44] There will also be orders under s. 109, for the production of DNA, and imposing the Victim Fine Surcharge.

The Honourable Justice Laurie Lacelle

Released: June 28th, 2018

COURT FILE NO.: CR-39700-17-51 DATE: 20180628 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Alexander Just REASONS FOR sentence The Honourable Justice Laurie Lacelle Released: June 28th, 2018