The purpose of sentencing has evolved over the years, with a growing emphasis on rehabilitation rather than mere punishment. Accordingly, probation orders are a critical part of Canada’s modern criminal justice system. Traditionally, punitive measures aimed to penalize offenders for their transgressions, however, they often overlooked the potential for reformation. In recent times, the tide has turned towards a more rehabilitative approach, recognizing the transformative power of second chances.

This blog will aim to provide a high-level overview of probation orders, exploring why society is increasingly leaning towards a rehabilitative ethos rather than a purely punitive one. By understanding the underlying principles driving this shift, we can better understand the potential benefits of a system that prioritizes second chances and rehabilitation of individuals.

The Purpose of Probation

Probation is an alternative to incarceration and has emerged as a key tool in fostering rehabilitation within the criminal justice system. The primary objective of a probation order is not to punish an offender, but rather provide them with an opportunity to reintegrate into society and adhere to certain conditions attempting to address the root causes of their criminal behaviour. This paradigm shift seeks to break the cycle of crime by offering support, guidance, and supervision, fostering personal growth and societal reintegration.

Appellant purchases farm; commences marijuana grow operation

In the matter of R. v. Ferguson, the appellant was charged with two counts of producing marijuana without authorization, contrary to the Controlled Drugs and Substances Act, as well as two counts of possession of marijuana for the purpose of trafficking. At trial, the appellant was sentenced to concurrent conditional sentences of “two years less a day, an 18-month probation order, a $100,001 fine, and a forfeiture order.” The appellant brought the matter before the Court of Appeal, seeking to appeal the conviction and the sentence.

Before the trial, in 2013, the appellant purchased a farm from “PM”, who had previously grown tomatoes on the land, intending to develop the property. After the purchase, the appellant began illegally growing marijuana on the land, while PM and his family continued to live on the property rent-free. The appellant created a company and paid PM a “modest salary to grow marijuana on the property,” however, of the four personal production licenses authorizing marijuana production on the land, PM was not named on the licenses nor was he listed as a designated grower under the Controlled Drugs and Substances Act. The appellant did obtain his own personal production license.

Police seize thousands of illegal marijuana plants

Following an attempted armed robbery in September 2016, the police seized the 3,390 marijuana plants from the greenhouse and warned PM about the illegality of the operation. The personal production licenses allowed for the production of 513 plants, however, no charges were laid.

In 2017, police seized 2,093 plants which were subsequently seized under a warrant and PM was charged with producting and possessing marijuana for the purpose of trafficking. The appellant was charged in relation to both the 2016 and 2017 seizures. PM entered into a guilty plea and was called as a witness by the Crown. The appellant did not testify and he was found guilty on all four counts.

Court of Appeal dismissed appeal against conviction

The appellant appealed the trial judge’s decision on several grounds, including arguments relating to the fault requirements of the offence he was charged with committing, as well as the trial judge’s findings. The Court of Appeal did, however, note that both offences rested on the same evidentiary foundation and the case against the appellant was “straightforward and formidable.”

The Court rejected the appellant’s argument that the trial judge erred in his assessment of the mens rea for the charges relating to production, noting that the trial judge found the” grow operation was “largely under the direction of” the appellant.” There was also “overwhelming evidence” showing that the appellant, at the minimum, assisted PM in the operation, as security cameras captured footage of the appellant visiting the property and he purchased equipment for the operation. In conclusion, the Court found that the trial judge did not err in dealing with the mens rea of the related offences.

Appellant seeks to appeal sentence imposed by trial judge

In regard to the sentence appeal, the appellant argued that the sentence imposed was unfit. While the Crown requested a custodial sentence of five years imprisonment, the appellant argued that a conditional or suspended sentence would be appropriate in the circumstances. The sentencing judge imposed concurrent conditional sentences including house arrest with electronic duration for the duration of the orders, in addition to 240 hours of community service. An 18-month probation order including an additional 240 hours of community service followed.

The Court noted that an appellate court may “intervene to vary a sentence only where the sentence is demonstrably unfit or where there has been an error in principle, a failure to consider a relevant factor, or the erroneous consideration of an aggravating or mitigating factor that impacted the sentence.” In this case, the trial judge was entitled to treat the offences in question as serious and the approach taken in regards to the fine ensured that the appellant would have the ability to pay the amount ordered within a reasonable time.

Court of Appeal sets aside “punitive” probation order

When considering the “broad range of sanctions imposed by a trial judge – a fine, forfeiture, conditional sentences, and probation,” the Court acknowledged that the sentence was “demonstrably unfit.” At the time of sentencing, the appellant was 69 years old and was employed at a low-paying job. The Court noted that the appellant had “made some efforts to operate legally” and these circumstances “reduced the appellant’s moral blameworthiness.” Accordingly, the Court amended the house arrest conditions to run for the first 12 months of the concurrent sentences and removed the electronic monitoring conditions in both sentence orders.

The Court was unable to determine why “a probation order was necessary in the circumstances, especially given the appellant’s age and lack of a previous criminal record” noting that s. 732.1(3)(h) of the Criminal Code provides that a probation order is for “protecting society and for facilitating the offender’s successful reintegration into the community.” As such, the Court found that the probation order imposed in this case was “punitive, not rehabilitative or protective” and set the order aside, with the other aspects of the sentence remaining in force.

The Toronto Criminal Defence Lawyers at Hicks Adams Provide Exceptional Representation on Appeal

At Hicks Adams, our knowledgeable criminal defence and appellate lawyers are ready to defend your rights and advise you on your options when appealing a judgment against you. We will provide you with practical, tailored legal advice as well as superior representation at trial and at the appellate level. To schedule a confidential consultation with one of our criminal defence lawyers, contact us at 975-1700 (toll-free at 1-877-975-1700) or reach out to us online.