



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bentley, 2017 ONCA 982

DATE: 20171215

DOCKET: C63398

Feldman, Tulloch and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

David Bentley

Respondent

Kevin Wilson, for the appellant

Janelle Belton, for the respondent

Heard: November 23, 2017

On appeal from the sentence imposed on January 27, 2017
    by Justice E. Allen of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The Crown appeals a 90-day intermittent sentence imposed on the
    respondent following his guilty plea to the charges of production of marihuana,
    contrary to s. 7(1) of the
Controlled Drug and Substances Act
, S.C.
    1996, c. 19 (the 
CDSA
), and fraudulently consuming electricity,
    contrary to s. 326(1)(a) of the
Criminal Code
, on the bases that the sentencing
    judge erred in principle and that the sentence was manifestly unfit.

[2]

The respondent was arrested on charges of carrying on a marihuana
    grow-operation at a rental house. At the time of the arrest, police searched a
    shed and located and seized 3,618 marihuana plants and 7 pounds of processed
    marihuana. It was also determined that the appellant was stealing electricity
    at the house to power the grow-operation equipment.

[3]

At the sentencing hearing, the Crown sought a sentence of four to six
    years. Defense counsel requested a sentence of 90 days, to be served
    intermittently.

[4]

The respondent had a related but dated previous conviction for the production
    of a Schedule II substance, for which he had been sentenced to a nine-month
    conditional discharge.

[5]

At the time of sentence for the current charges, it was submitted to the
    court that the respondent was under the care of a psychiatrist, suffering from
    a series of chronic psychological ailments, including a history of depression
    and anxiety and a tendency to display intermittent chronic suicidal ideation. A
    letter was submitted by the respondents psychiatrist indicating that the
    respondent presented as a high risk for decompensating if he were to be
    incarcerated.

[6]

The sentencing judge sentenced the respondent to 90 days imprisonment,
    to be served intermittently. The reasons for sentence consisted of two
    paragraphs in which the sentencing judge did not address any of the principles
    of sentence which should have informed his decision, but rather stated that it
    was morally and rationally untenable for the federal government to seek to
    legalize the use of recreational marihuana while at the same time continuing to
    enforce the existing marihuana laws. In the view of the sentencing judge, the
    intended change in the law cuts the legs out from under all of the traditional
    sentencing rules in this area.

[7]

In our view, the sentencing judge erred in principle by failing to give
    appropriate reasons for sentence, as well as in the fitness of the sentence
    which he imposed.

[8]

With respect to the reasons, the sentencing judge focused entirely on
    his personal views, which he advanced without inviting submissions on them from
    either party. We adopt the observation of Trotter J., as he then was, in
R.
    v. Tran
, 2016 ONSC 3225, where he observed that the prospect of reform on
    the horizon did not entitle the sentencing judge to disregard the rule of law.
    See also
R. v. Song
, 2009 ONCA 896, 100 O.R. (3d) 23.

[9]

Both appellate counsel agree that by applying normal sentencing
    principles, the sentence imposed was unfit, given the high number of plants
    seized, the antecedent record of the respondent, as well as the pre-existing
    jurisprudence on sentencing for similar types of cases.

[10]

The offence under s. 7(1) of the
CDSA
was subject to a mandatory
    sentence of three years. Because the grow-operation consisted of more than 500
    plants and was located on a property owned by someone else, ss. 7(2)(b) and
    7(3)(a) of the
CDSA
applied. We note that during sentencing
    submissions the sentencing judge took the view that he was bound by the
    decision in
R. v. Pham
, 2016 ONSC 5312, in which Code J. held that the
    mandatory minimum infringed s. 12 of the
Charter
and was of no force
    and effect. The appeal from that decision, along with two companion appeals,
    has been heard by another panel of this court and is under reserve.

[11]

Both parties agree that it would be procedurally unfair to sentence the
    respondent based on the mandatory minimum sentence, as he was told by the
    sentencing judge not to make submissions on the constitutionality of the
    provision.  Both parties also submit that an appropriate sentence in this case should
    be in the upper end of the reformatory range, somewhere between 15 months and
    18 months incarceration. We agree. We are of the view that a fit sentence is 18
    months.

[12]

The respondent has tendered fresh evidence on this appeal. He is 62
    years old and is now fully employed as an auto mechanic. He has two adult sons,
    with whom he has a very close relationship; he speaks to them on a regular
    basis.

[13]

The respondent is also under the care of a psychiatrist and is being
    treated for anxiety and depression. He has completed serving his 90-day
    intermittent sentence and is fully reintegrated back into his community.

[14]

In our view, the principles of specific deterrence and rehabilitation have
    been met in this case. While we agree that in the instant case, the principles
    of general deterrence and denunciation are of paramount consideration, we are also
    of the view that those principles are now satisfied with the imposition of a
    sentence of 18 months incarceration. It is also our view that to re-incarcerate
    this respondent would not be in the interests of justice, and would have undue
    adverse effects on this respondent.

[15]

Accordingly, leave to appeal sentence is granted, and the appeal is
    allowed. In all the circumstances, we impose a sentence of 18 months and order
    that execution of that sentence be stayed.

K. Feldman J.A.

M. Tulloch J.A.

M.L. Benotto J.A.


