





CITATION:
R. v. Maloney, 2011 ONCA 821



DATE: 20111222



DOCKET: C53799



COURT OF APPEAL FOR ONTARIO



Rosenberg, Sharpe and Juriansz JJ.A.



BETWEEN:



Her Majesty The Queen



Respondent



and



Sean William Maloney



Appellant



Sean Maloney, in person



Kevin Wilson for the respondent



November 7, 2011



On appeal from conviction and sentence by Justice Bordeleau of
          the Ontario Court of Justice dated May 27, 2011.



By The Court



[1]

On May 27, 2011, the appellant pleaded guilty to one count of possession
    of marihuana for the purpose of trafficking. Bordeleau J. sentenced the
    appellant to 30 days imprisonment to be served intermittently and 11 months
    probation. The appellant initially appealed his conviction. At the hearing of
    that appeal, with the consent of the Crown, time to appeal sentence was
    extended.

[2]

The appellants conviction appeal raises the same grounds of appeal that
    were argued in the
McCrady et al
. and in the
Parker
appeal. In
    particular, the appellants arguments and his situation mirror those of the
    appellants McCrady and Hearn. For the reasons set out in those decisions, which
    are released concurrently with this decision, the appeal from conviction is
    dismissed.

[3]

As to the sentence appeal, the facts of the offence are that on June 6,
    2010, the appellant and two others were in a vehicle near Casselman heading
    towards the Quebec border. For reasons that are not necessary to explore, a
    police officer stopped the vehicle.  The appellant handed a bag to the police
    officer that contained 521 grams of
cannabis
marihuana and 55 grams of
cannabis
resin. The appellant used
cannabis
for medicinal purposes.  He suffers
    from back pain as a result of lumbar scoliosis.  The
cannabis
helps
    relieve the symptoms. At the time of the offence, the appellant did not have an
    authorization to possess marihuana issued under the
Marihuana Medical Access
    Regulations,
S.O.R.,/2001-227
.


[4]

During his oral submissions to this court, the appellant explained the
    difficulty he has had in finding a physician in his home province of Quebec to
    assist him in applying for an ATP.  Given the way this allegation was raised at
    the hearing of his appeal, without supporting material, we are not able to
    address the merits of that position.

[5]

However, we are satisfied that given the appellants 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. Crown counsel did not oppose
    this disposition.

[6]

Accordingly, leave to appeal sentence is granted, the appeal is allowed
    and the sentence of imprisonment reduced to time served. We see no reason for
    the period of probation and that order will also be struck out.

Signed:           M. Rosenberg J.A.

Robert J. Sharpe J.A.

R. G. Juriansz J.A.

RELEASED:  MR DECEMBER 22, 2011


