Marcotte, Sansfaçon, Kalichman

Appeal from sentence. Allowed for the sole purpose of substituting a 10-month conditional sentence of imprisonment with conditions for the prison term imposed.

The appellant appeals the judgment sentencing him to 10 months’ imprisonment followed by 2 years of probation for the illegal cultivation of cannabis, possession of cocaine and possession of amphetamines.

The appellant argued that a more lenient sentence was justified since his cannabis consumption was for therapeutic purposes. He referred to a Health Canada certificate, delivered after the charges were laid, authorizing him to cultivate up to 195 cannabis plants. The trial judge suggested either calling as a witness a pharmacology expert who had recently testified before him in another trial (R. c. Drapeau (C.Q., 2019-06-21), 2019 QCCQ 3744, SOQUIJ AZ-51607138, affirmed by Drapeau c. R. (C.A., 2020-06-12), 2020 QCCA 796, SOQUIJ AZ-51691105, 2020EXP-1598), in accordance with s. 723 of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.), to hear his opinion on the quantity of cannabis required to meet therapeutic needs or adducing into evidence the transcript of that expert’s testimony in the Drapeau case. He also raised the possibility of calling a second expert on the issue of the production capacity of a greenhouse like the appellant’s. Despite counsel for the appellant’s objection, the judge heard those 2 witnesses and excluded the possibility that the appellant’s cannabis cultivation was for therapeutic purposes based on that testimony.

Kalichman J.A.: In exercising the power granted in s. 723 Cr. C., the judge must not lose sight of the fact that the criminal process is adversarial. Before requiring that evidence be presented, the judge must consult the parties about the evidence sought and its relevance, while offering them the possibility of presenting the evidence themselves. In this case, the examination of the circumstances in which the judge required additional evidence raises a reasonable apprehension of bias. He did not tell the parties that the expert testimony he intended to file in the record would undermine the appellant’s argument with respect to therapeutic use. In Drapeau, the judge relied on the testimony of that same expert to reject an argument similar to the accused’s. Unlike the judge, the appellant was not aware of the effect of this testimony, which the judge did not disclose. In this case, the judge’s suggestion can be likened to an ambush.

There is an important distinction between establishing the need for additional evidence on an issue and conducting the process to reach a specific outcome. In this case, the judge’s behaviour suggests that he adopted a position that was not in the appellant’s interest with a specific purpose, that is, to contradict the theory of consumption for medical purposes. In addition, the way the additional evidence was adduced is questionable since the manner in which the witnesses called by the judge were heard was similar to an investigation. Not only did the judge take charge of the administration of the evidence in examining the witnesses personally, he also brought up topics that had not been discussed with the parties beforehand and that, at best, were only indirectly related to the issues in dispute. The trial judgment gives the impression that the judge had an agenda that went beyond the dispute between the parties, which, once again, raises an apprehension of bias. Moreover, the judge’s behaviour is inconsistent with the correct application of s. 723 Cr. C. and constitutes an error in principle that had an impact on the sentence rendered.

Marcotte J.A.: Even though the earlier version of s. 742.1 Cr. C., in force when the judgment was rendered, did not allow conditional sentences for offences that carried maximum prison terms of 14 years, such as cannabis cultivation, this legislative restriction has since been removed, such that the appellant can now benefit from it. The possibility of less restrictive sanctions (s.  718.2 (d) Cr. C.) and the principle of restraint in resorting to imprisonment must be taken into account. The judge listed but did not apply the indirect consequences that could arise from a prison sentence, that is, the loss of employment and income, and the repercussions of imprisonment on the shared custody exercised by the appellant.  Although the judge found that those consequences were the result of the applicant’s ill-advised choice to cultivate cannabis in his residence, the Court should have taken them into account.

Text of the decision: http://citoyens.soquij.qc.ca