




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Judd, 2018 ONCA 724

DATE: 20180831

DOCKET: C63789

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Randall Judd

Appellant

Lauren M. Wilhelm, for the appellant

Kevin Wilson, for the respondent

Heard and released orally: August 24, 2018

On appeal from the conviction entered on June 22-23, 2015
    and the sentence imposed on December 2, 2016 by Justice Dale Parayeski of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant appeals a sentence of three years imposed upon him after a
    plea of guilty to a count of production of marijuana. He was also found guilty
    of possession for the purpose of trafficking in the same controlled substance
    and ordered to serve a concurrent sentence of imprisonment of six months.

[2]

The sentence for production was imposed on a joint submission after the
    trial judge rejected a challenge to the constitutionality of the applicable
    minimum punishment provisions of s. 7(2)(b) of the
Controlled Drugs and
    Substances Act.


[3]

In this court, the parties are
ad idem
that the subsequent
    decisions in
R. v. Vu
,
2018 ONCA 436
and
R.
    v. Tran
, 2017 ONSC 651
are
    dispositive of the constitutionality of the applicable punishment provisions.
    It follows that the trial judges decision in this respect was wrong and we are
    left to determine the fitness of the sentence imposed.

[4]

Before dealing with the issue of fitness, something should be said about
    an issue raised at first instance and discussed briefly by counsel in this
    court. That issue concerns the meaning to be assigned to the term plants as
    it appears in the punishment provisions of s. 7 of the
CDSA.

[5]

In our view, it is unnecessary for us to decide this issue on this
    appeal. There is no question that this was a sizable grow operation consisting
    of both plants and clones. Whether the clones are considered as plants,
    despite the absence of evidence that there were roots attached to them, or
    whether they only become plants if there are roots attached to them, need not
    be decided in this appeal.

[6]

In this court, Mr. Wilson, with commendable fairness, acknowledged that
    a two-year sentence would also be fit.

[7]

In light of the pre-sentence custody for which the appellant received no
    credit at trial, his plea of guilty, the significant period on pre-trial
    release, including several months of house arrest, and in spite of the
    appellants lengthy criminal record, we are satisfied that the ends of justice
    would be met by reducing the sentence imposed at trial to a term of two years.

[8]

In the result, leave to appeal sentence is granted, the appeal is allowed
    and the sentence is varied to a term of two years on the production count. The
    concurrent sentence of six months on the conviction of possession for the
    purpose of trafficking remains, as do the ancillary orders made at trial.

David Watt J.A.

Grant Huscroft J.A.

Fairburn J.A.


