R. v. Habib, 2018 NSSC 170

SUPREME COURT OF Nova Scotia Citation: R. v. Habib , 2018 NSSC 170 Date: 20180718 Docket: CRH 448868 Registry: Halifax Between: Her Majesty the Queen v. Edward Jonathan Habib and Thomas Edward Davison SENTENCING DECISION Judge: The Honourable Justice James L. Chipman Sentence Hearing: June 20, 2018 Oral Decision: Written Release: July 18, 2018 July 19, 2018 Counsel: Angela Nimmo, for the Federal Crown Donald C. Murray, Q.C., for Mr. Habib Trevor McGuigan, for Mr.

Davison By the Court (Orally): Introduction: [ 1 ] By amended Indictment, Edward Jonathan Habib and Thomas Edward Davison were jointly charged that on or about February 12, 2013, at or near Dartmouth, Nova Scotia, they did: 1. Unlawfully produce Cannabis (marihuana), a substance included in

Schedule II of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 7(1) of the said Act ; 2. AND FURTHER that they at the same time and place aforesaid, did unlawfully have in their possession for the purpose of trafficking , not in excess of three kilograms, Cannabis (marihuana), a substance included in

Schedule II of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, and did thereby commit an offence contrary to Section 5(2) of the said Act ; [ 2 ] A Supreme Court Judge alone trial was set for January 3, 4 and 5, 2018. On the first day of trial Mr. Davison plead guilty and his sentencing was scheduled for June 20, 2018. Mr. Habib’s trial proceeded and on January 4, Justice Cacchione reserved decision until February 23, 2018. On February 23 rd , he rendered an oral decision convicting Mr. Habib on both counts. Justice Cacchione retired on February 27, 2018 and the sentencing of both offenders was scheduled before me.

[ 3 ] Since Justice Cacchione did not provide a written release of his February 23 decision, I made a point of listening to his decision and having it transcribed. In finding Mr. Habib guilty, the trial judge noted as follows: [31] Having considered the inferences that may be drawn from these proven facts, in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense, I am satisfied beyond a reasonable doubt that the only reasonable inference is that Mr.

Habib was fully aware of the marijuana grow operation in that house and was, in fact, an active participant together with Mr. Davison in the intentional production of marijuana. I am also satisfied beyond a reasonable doubt Mr. Habib had possession of the marijuana found in the residence and his possession was for the purpose of trafficking. [ 4 ] On April 23, 2018, Mr. Habib filed a Notice of Constitutional Issue seeking declarations of unconstitutionality in respect of s. 7(2)(b)(i), (ii), (iii) and (iv) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19, as amended (“ CDSA” ).

On June 5 the Court received Mr. Habib’s 19-page brief and 30 authorities in support of his position. Mr. Habib’s argument centered on the decisions in R. v. McGee , 2017 BCCA 457 and R. v. Vu , 2018 ONCA 436 as he took the position that the impugned sections of the CDSA violate s. 12 of the Charter and are not saved by s. 1. [ 5 ] Also on June 5, the Crown submitted the following correspondence: The Crown will be withdrawing the Notice of Intention to Seek Mandatory Minimum Penalty herein. That has the effect of removing the statutory minimum punishment, and I believe it renders moot the motion by Mr.

Murray. [ 6 ] Since the Crown has withdrawn their intention to seek the mandatory minimum penalty, the parties agree and I find that it is not necessary to consider the original motion filed by Mr. Habib’s counsel. Accordingly, the Court is left to consider the appropriate sentence for each offender. Positions on Sentence : Crown [ 7 ] The Crown is of the view that Mr. Habib should be sentenced to 1.5 years incarceration and Mr. Davison’s crimes warrant 1 year incarceration. The Crown also asks for these ancillary orders: (

a) Weapons prohibition pursuant to s. 109 of the Criminal Code ; (

b) DNA Order pursuant to s. 487.05 of the Criminal Code ; and (

c) Forfeiture of the items seized pursuant to s. 16 of the CDSA . Mr. Habib [ 8 ] Mr. Habib offers as follows in the last para. of his written submission: Conditional sentences have not been available pursuant to s. 742 of the Criminal Code for production offences because of the statutory mandatory minimum. Even with a finding that the mandatory minimum penalty regime is unconstitutional, it may be that s. 742.1 (e)(ii) of the Criminal Code “production of drugs” / “maximum term of 10 years” would still disentitle Mr. Habib to a conditional sentence. Subject to the Court’s decision on the constitutionality of s. 7(2)(b), and the resolution of this Criminal Code

interpretation issue, Mr. Habib’s offence may deserve an actual term of imprisonment of between 6 months and 12 months, closely following the approach taken in R. v. McGee , supra . [ 9 ] In oral argument Mr. Murray provided further background and ultimately recommended that the Court order a 15 month suspended sentence on the s. 7(1) count with a concurrent 12 month conditional sentence on the s. 5(2) count. Mr. Davison [ 10 ] Mr. Davison put forward the following sentencing position in his brief: It is submitted that in relation to the 5(2) offence a CSO for 18 months be imposed.

That 6 months of that sentence Mr. Davison be subject to house arrest with exceptions for work, 4 hours a week to attend to personal needs, medical appointments or emergency, or if approved in advance by his supervisor; followed by 6 months of a curfew with exceptions for medical emergencies; followed by 6 months of remaining conditions. The order ought to also include a requirement that Mr. Davison attend for any assessment or counseling deemed necessary, not to possess or consume any controlled substance, and complete 50 hours of community service.

In relation to the 7(1) offence, a suspended sentence with 30 months probation with conditions that mirror and extend the CSO would be appropriate. [ 11 ] In his oral submission Mr. McGuigan emphasized his position that a community based sentence should be imposed. Facts Giving Rise to the Offences : [ 12 ] Justice Cacchione described the following uncontroverted facts in his February 23, 2018 decision:

[4] An expert’s report was prepared by Const. Mirko Markovic marked as Exhibit 1 and his qualifications were entered as Exhibit 2. Those were admitted by consent. The expert’s opinion was that the items seized are consistent with what would be found in the possession of marijuana traffickers. [5] The evidence presented at trial establishes that a house located at 4 Bellbrook Crescent was rented to Mr. Davison beginning on November 1, 2012. The owner of the house, Mr. Nurse, dealt exclusively with Mr. Davison and had no contact whatsoever with Mr.

Habib. [6] On February 12, 2013 the police obtained and executed a search warrant for that house. Constable Apa was the exhibit officer. He video recorded the interior of the house once entry was made by other officers. [7] Exhibit 3, the video recording, shows that the entire house was unfurnished except for two folding lawn chairs. Marijuana was being grown in two bedrooms on the upper floor and in the basement. The main floor was empty. Exhibit 3 clearly establishes that no one was occupying the house as a residence. There were no beds or other furnishings and no food in the house.

The house was being used solely as a location for a marijuana grow operation. [8] Materials such as rockwood, bags of soil, bottles of plant nutrients, ballasts, lights, fans, carbon filters, ventilation tubing, water trays, pumps, scissors, pruning clippers were found on both the basement and upper floor levels where marijuana was being grown. A multitiered rack for drying marijuana plants was also found in one of the upstairs bedrooms. The windows were covered and reflective material was present in the rooms where marijuana was being grown.

Two log books setting out the dates when plants were watered and fed nutrients were also found in the two areas where plants were being grown. [9] In total 211 plants together with 84 clones were found in the residence. … [28] The uncontroverted facts in this case are that the accused, Mr. Habib, was seen in the company of the co-accused, Mr. Davison who plead guilty, either exiting the residence and getting into a Hyundai motor vehicle on February 8th or shoveling snow at that residence on February 10, 2013.

The same Hyundai vehicle was seen parked in the driveway of the residence on several days in February – the 7th, 8th, 9th and 10th. It was the only car ever seen parked in the driveway of that residence. This same vehicle was parked in the driveway on February 12th when the police executed a search warrant. [29] On February 12, 2013 shortly after the two men were seen approaching the residence the search warrant was executed. As I have stated, prior to entering the police knocked on the door and rang the doorbell. No one answered the door and the police then used a battering ram to enter the residence.

The co-accused, Mr. Davison, was arrested as he was exiting a bedroom on the upper level of the house. A short time later the other accused, Mr. Habib, was seen walking away from that residence. He was arrested outside and brought into the residence where he was searched. On his person was a key that unlocked the door and a bill, in the co-accused’s name, for a fuel delivery to the residence dated that same day, was found on Mr.

Habib. [30] It is clear from Exhibit 3, the video taken of the interior of the residence, that this house was unoccupied, unfurnished and used solely for production of marijuana. [ 13 ] Exhibit 1 at the trial was marked as exhibit S-1 at the sentencing. This exhibit, Mr. Markovic’s report, confirms that on February 12, 2013, members of the Halifax Integrated Drug

Section executed a search warrant at the residence. They arrested Mr. Habib and Mr. Davison and seized the following: • 211 marihuana plants at different stages of growth and maturity; • 84 marihuana clones; • notebook with marihuana watering schedule; • $85 Canadian currency; and • Blackberry device. [ 14 ] Exhibit 3 at trial was marked as exhibit S-2 at the sentencing. The DVD runs approximately 20 minutes and was played in Court. It is a video taken by Constable Apa primarily showing the inside of the residence at 4 Bellbrook Crescent on the day in question. There is no narration.

The camera pans the several rooms of the home and it is readily observable that this home was completely dedicated to the production of marihuana. [ 15 ] From exhibit S-1, the following passage appears at p. 4: In my experience I have observed marihuana grow operations of varying levels of sophistication which range from one room simple marihuana grown operations to multiroom multi-light grown operations. Sophisticated, and larger scale, marihuana grow operations will typically employ more equipment than a simple marihuana grow.

Some examples of this may be: timers for lights, fans, ventilation and charcoal filters (commonly used to remove the odour of marihuana when air is vented from inside of a building where the marihuana grow is. [ 16 ] The author goes on to conclude that the 211 marihuana plants taken in this seizure would yield 10,550 grams (on the basis of 50 grams per plant).

He then offers as follows on p. 5 of his report: At this quantity, and with the manner in which marihuana breaks down it can be concluded that the potential yield from the marihuana plants seized by police would be outside what can be expected to be in the possession of a typical marihuana user.

Where police have arrested and charged two people in relation to this case, currently before the courts, the total days usage can be divided among the two accused. In that case the total day’s usage from the potential yield of marihuana seized by police would equate to: 3517 days / 2 accused = 1758.5 days usage. A quantity, as above, outside what can be expected to be in the possession of a typical marihuana user. [ 17 ] At the end of his report Mr.

Markovic estimates that street value of the 10,550 grams to be as much as $105,500.00 (based on $10.00 per gram) and as little as $46,000 at the pound level (10,550 grams = 23 pounds x $2,000.00 per pound). [ 18 ] On balance the evidence reveals that this was a rather significant commercial grow operation. The home in question was completely dedicated to the production of cannabis (marihuana). The video confirms nobody lived there. For example, there are no household furnishings; rather, the home is filled with cannabis (marihuana) production apparatus, the plants and clones.

Offender Profiles : Thomas Edward Davison [ 19 ] Mr. Davison had this criminal record at the time of his arrest: 2006-Jul-03 Dartmouth, NS CC 253(

b) Operating Motor Vehicle Over .08 Fine: $600 Driving prohibition 2007-May-14 Dartmouth, NS CC 259(4) Driving While Prohibited Fine: $700 Driving prohibition [ 20 ] The Court received and reviewed as exhibit S-3, a six-page Pre-sentence Report (“PSR”) prepared by Probation Officer Ronald S. Wright in respect of 37-year-old Mr. Davison. As well, exhibits S-5 and S-6 were entered, character references authored by his older brother (Michael Davison) and his wife (Kirsten Davison) as well as his friend and mentor (Gary Nepean). Mr. McGuigan spoke to his client’s character and Mr.

Davison addressed the Court. [ 21 ] From the PSR we learn that Mr. Davison had a solid upbringing. A high school graduate, Mr. Davison also completed a two- year pharmacy technician course. He subsequently had life insurance training and is an accredited life insurance broker. Mr. Davison currently works in business development with an insurance company. [ 22 ] Mr. Davison was married about 3 and a half years ago. The couple have a three -year-old son. Mr. Davison’s wife works as a nurse at the IWK hospital. [ 23 ] This matter has taken a toll on Mr. Davison.

He was dismissed from a prior job on account of the charges. He takes medication to help with anxiety and depression. The character references (exhibits S-5 and S-6) are very supportive and the PSR concludes with this section: Assessment of Community Alternatives/Resources Before the Court is Thomas Davison, 37 years of age, employed, who has the support of his wife, extended family and friends. This report reveals the subject takes responsibility for the index offences and expressed remorse. Collaterals herein report Mr. Davison does not have any personality deficit areas requiring program intervention.

Also, the subject is a productive member of society, who they respectfully hope and pray receives a community disposition oppose to custody. Mr. Davison offered to make amends, he would be willing to perform community service work and/or pay court fines. If the Court deem it appropriate, it appears based on this report, Thomas Davison seems a suitable candidate for community supervision. [ 24 ] When he addressed the Court Mr. Davison talked about the loss of his job and house on account of this matter. He said meeting his wife brought happiness back to him. He referenced his close relationship with his young son.

He stated that he thinks about this matter constantly. He said he was, “…so remorseful for the shame I’ve brought to myself, for the pain caused on my family”. Edward Jonathan Habib [ 25 ] Mr. Habib had the following criminal record when he was arrested: 2009-Oct-16 Dartmouth, NS CC 253(

A) Impaired Operation of Motor Vehicle Fine: $2000 Driving prohibition 2009-Oct-15 Dartmouth, NS CDSA 5

(1) Trafficking 2 years, 6 months incarceration 2008-Oct-14 Halifax, NS CC 145 Fail to Comply with Undertaking Suspended sentence and 12 months probation [ 26 ] The Court received and reviewed as exhibit S-4, a seven-page PSR prepared by Probation Officer Crystal Bailey with regard to 33-year-old Mr. Habib. Further, Mr. Murray spoke to his client’s situation and Mr. Habib addressed the Court.

[ 27 ] As with Mr. Davison, Mr. Habib had a fine childhood. He maintains a close relationship with his parents, siblings and grandmother. Mr. Habib and his girlfriend have been together for close to two years. They have a positive relationship and it is clear she is a support to Mr. Habib. [ 28 ] Mr. Habib’s past trafficking conviction brought a sentence of 2.5 years’ prison time and his sister remarked then when released he was a “different person”. [ 29 ] Mr. Habib is a high-school graduate.

He completed two years of studies at Dalhousie University and at some point would like to resume his Bachelor of Management program. The offender is the founder / principal of a successful on-line drone company. [ 30 ] In terms of health, Mr. Habib has a medical marihuana license to treat his stomach as well as a slight anxiety condition. [ 31 ] The PSR references the adverse impact this matter has had on Mr. Habib. He has accepted responsibility and expresses remorse. In the final

section of the PSR appears the following: Assessment of Community Alternatives/Resources Mr. Edward Habib is a 33-year-old male with prior criminal convictions. Since the commission of the index offence for which he is currently before the Court, the subject appears to have made some positive changes in his lifestyle, and it is apparent he has close family support. Should the Court deem this individual as suitable for community supervision, he may benefit from conditions he report as directed, maintain legal employment, and abstain from the possession and use of illicit substances without a medical prescription.

He may also benefit from a condition he abstain from associating with those who possess a criminal record. Last, there does not appear to be any barriers preventing the offender from completing community service work. [ 32 ] When he addressed the Court Mr. Habib stated he was in a “dark place” when he was released from prison. He vowed not to repeat; however, he said he got into trouble again. Now that he is in his thirties, Mr. Habib said his focus is on work and family. He worries that if he is sent to jail he will regress.

He concluded by saying, “ … this is all I think about… I’m very remorseful to say the least”. Guiding Caselaw: [ 33 ] It is the Crown’s position that the hydroponic marihuana grow operation should be characterized as a “mid-level marihuana grow operation”. Having reviewed the cases and the situation as described by Justice Cacchione along with exhibits S-1 and S-2, I believe this to be a fair characterization. With respect to the jurisprudence, I have focussed on these sentencing decisions: • R. v. McCurdy , 2002 NSCA 132 • R. v. Shacklock , 2000 NSCA 120 • R. v. Frenette , 1997 NSCA 92 • R. v.

Patton , 2016 NSSC 222 • R. v. Hobbs , 2009 NSSC 257 • R. v. MacDonald , 2007 NSSC 308 • R. v. Nguyen , 2007 NSSC 134 • R. v. Matheson , [2013] NSJ No. 367 (NSPC) [ 34 ] Of the out-of-province cases referenced by counsel, I am particularly drawn to two recent decisions of the British Columbia Court of Appeal, R. v. Serov , 2017 BCCA 456 and the aforementioned R. v. McGee , 2017 BCCA 457 . In addition to striking down the CDSA ss. 5 and 7 mandatory minimum sentences, in McGee , the British Columbia Court of Appeal had cause to comment on the sentence imposed by the trial judge. Mr.

McGee pleaded guilty to production of marihuana and possession of more than three kilograms of marihuana for the purposes of trafficking. He was co-principal in a grow operation containing 601 marihuana plants set up in his rental home. The facts are described as follows by Justice Stromberg-Stein: 5 Mr. McGee and his wife had rented a home in a residential area in Surrey, BC since 1992. On January 31, 2013, the RCMP executed a search warrant at the single level home and discovered a marihuana grow operation in the crawl space.

There were two growing rooms with a total of 601 plants (302 flowering and 299 in a vegetative state) and various equipment commonly associated with a marihuana grow operation. The hydro meter had been bypassed and two ducts connected the crawl space to the attic for ventilation. Access to the crawl space was through a trap door in a closet on the main floor. Three baggies of marihuana totalling 515 grams were located in the living room and bedroom of the house. Mr.

McGee admitted he was a principal of the grow operation and actively participated in and profited from the production of the marihuana. 6 This commercial grow operation was of average sophistication. It would have taken a week to set up, with significant effort, at a cost of about $30,000. The operation could have been carried out by one or more people. The trial judge accepted an assessment by a police expert witness that there had been at least two previous crops. Each crop was conservatively valued at $93,900. The judge accepted Mr.

McGee would have received $20,000 per crop. 7 The home was rendered uninhabitable as a result of the grow operation. The owners had to pay $8,000 to the City of Surrey for the costs of investigating and dismantling the grow operation and had to sell the property at below market value because they could not afford the $30,000 required to make it habitable again.

[ 35 ] Most of the rest of the decision is dedicated to the British Columbia Court of Appeal’s Charter analysis of the impugned sections. The Court then concludes by passing comment on the 10-month sentence imposed by the trial judge: 30 Mr. McGee has successfully completed his 10-month sentence. In my view this sentence is at the very low end of the range suggested in the case authorities. At a very minimum a 12-to 15-month sentence should have been imposed in the circumstances of this case, where Mr.

McGee, a principal in an illegal grow operation with more than 500 plants, rendered a rental house uninhabitable in order to profit from the illegal production of marihuana and has made no restitution to the innocent property owners. These are aggravating factors which, in my view, the sentencing judge acknowledged, but failed to give sufficient weight. However, as I have noted, the Crown has not argued the sentence is unfit beyond that the mandatory minimum should have been imposed. [ 36 ] Serov was heard on the same date as McGee and the decision was released on the same date as McGee ; December 28, 2017.

Not surprisingly, it involved the identical panel (Saunders, Stromberg-Stein and Fenlon, JJA) and Justice Stromberg-Stein also “had the pen” on Serov . She provided this background: 5 On October 1, 2012, Mr. Serov leased a unit in a commercial warehouse complex in Port Coquitlam for 18 months. While attending to read the water meter on July 4, 2013, the property manager smelled marihuana and went with Mr. Serov into the warehouse where he observed two commercial trailers. Together they entered one, which contained lighting and dirt. Mr. Serov claimed the other trailer was locked.

He denied marihuana was being grown, but eventually admitted the trailers were used for that purpose. The property manager called the police, who executed a search warrant that evening. 6 In addition to the two trailers, which were registered to Mr. Serov, the police found growing chemicals and boxes of fans. Mr. Serov's fingerprints were identified on a number of documents seized near the growing chemicals. One trailer was set up as a mobile grow operation but did not have any plants. The other trailer contained a similar set-up and had 248 healthy plants at the budding stage.

To ensure the health of the plants, someone had to tend to them at least once a week. The value of the 248 plants was estimated to be between $27,900 and $102,300 if sold by the pound, or between $44,640 and $163,680 if sold by the ounce. 7 At trial Mr. Serov testified he had rented the warehouse and purchased a trailer as part of a supplement import business he was trying to set up. The business proved unsuccessful, so he sold the trailer and subleased the space to Mike Taylor, a person he had met through a friend at the gym. The trial judge did not believe Mr.

Serov's evidence as his actions were inconsistent with his account and he had no documentary evidence to support his story. In her reasons for judgment ( 2015 BCSC 939 ) she rejected his evidence, describing it variously as "difficult to fathom" and "as a whole utterly incapable of belief" (at para 74); "a patently false attempt to explain why a trailer still in Mr.

Serov's name was full of marihuana and grow operation paraphernalia" (at para. 77); "defy[ing] logic, reason, common sense" (at para. 78); "made no sense" (at para. 80); and an effort "to distance himself from anything and everything that went on at the warehouse" (at para. 83). The judge found that Mr. Serov had control of the warehouse, had knowledge of the grow operation either as a principal or a co-principal, and was likely working with others. Further, she found that Mr.

Serov's active participation was the only rational conclusion based on the risk he assumed and given the purpose of the setup as a grow operation. She convicted Mr. Serov of possession of marihuana for the purpose of trafficking and production of marihuana. [ 37 ] After going through the Charter analysis, Justice Stromberg-Stein discussed the fitness of the one-year sentence imposed by the trial judge. I find the Court’s review of sentencing principles and general discussion at paras. 57 – 75 to be most helpful and relevant to my consideration of this matter.

In any event, the British Columbia Court of Appeal ultimately upheld the sentence of 12 months imprisonment in Mr. Serov’s case. Analysis and Disposition: [ 38 ] With respect to the principles of sentencing, I draw general guidance from ss. 718 , 718.1 and 718.2 of the Criminal Code . I also reference s. 10(1) of the CDSA . [ 39 ] Sentencing is a highly individualized process as will be shown through this decision in as much as each offender will receive a different sentence. The Supreme Court of Canada ( R. v. Lacasse , 2015 SCC 64 at para. 58 and R. v.

Nur , 2015 SCC 15 at para 43 ) has confirmed that the sentencing judge must factor in the gravity of the offence and the offender’s degree of responsibility. Proportionality requires that a sentence not exceed what is just and appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. The parity principle (secondary to proportionality) requires similar sentences be imposed for similar offences committed in similar circumstances (see Lacasse at para. 53 ). [ 40 ] In terms of mitigating factors, I note that with respect to Mr.

Davison: • He plead guilty to the charges. • He has expressed sincere remorse. • It has been over five years since his arrest on the offences and he has not had any involvement with the law. • He has a dated and unrelated criminal record. • He is in a positive relationship and the father of a young son. • He has strong family support. • He lost his job as a result of the charges. • He has secured new employment and is now in a stable position. • He has experienced some health issues on account of the stress related to the charges.

[ 41 ] In terms of aggravating factors I note as follows: • The number of plants (211) plus 84 marihuana clones. • Real property belonging to a third party (Mr. Nurse) was used for the production of the marihuana. • It was a mid-level grow operation of some sophistication. • It was a for-profit production and the value of the crop was in the range of $46,000.00 - $105,500,00. [ 42 ] For Mr. Habib I would cite identical aggravating factors as with Mr. Davison. As for Mr.

Habib’s mitigating factors, I note the following: • He has expressed sincere remorse. • It has been over five years since his arrest on the offences and he has not had any involvement with the law. • He is in a positive relationship. • He has strong family support. • He is the founder-principal of a successful small business. • He expresses an interest in returning to university. • He has experienced some health issues. [ 43 ] Based on my review of the cases, these offenders must demonstrate exceptional circumstances in order to achieve the kinds of sentences they have proposed.

That is to say, I am of the view that it may be possible to achieve a suspended sentence (but not a conditional sentence) with offences of this nature. The question here is of course, do either of Mr. Davison or Mr. Habib fit into this category? [ 44 ] With reference to exceptional circumstances I return to Justice Stromberg-Stein’s decision and in particular her comments at paras. 58 – 60 of Serov : 58 Mr. Serov also relies on R. v.

Voong , 2015 BCCA 285 , one of four appeals heard concurrently, where trial judges had departed from the appropriate sentence range and imposed a suspended sentence in circumstances which would otherwise have warranted a jail sentence. This Court held that highly exceptional circumstances can justify a non-custodial sentence outside the typical range in a rare case and a suspended sentence can meet the principles of sentencing and be a fit sentence.

It is important to note that Voong, and the other cases heard with it, involved drug-addicted offenders who had pleaded guilty to drug trafficking offences and it was the trial judge who had imposed a non-custodial sentence outside the normal range. In three of the four cases, this Court, noting the required deferential standard of appellate review, upheld the decision of the sentencing judge to impose a sentence outside the normal range where the sentencing judge recognized there were sufficient exceptional circumstances, such as demonstrated rehabilitation over a period of time.

It was in the context of the rehabilitation of a drug trafficking drug addict that Madam Justice Bennett defined "exceptional circumstances" as follows: [59] ... Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict , gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence .

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence . 59 In the passage just quoted, Bennett J.A. said that not only must there be "something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around", there must also be something that would lead the sentencing judge to conclude "that the protection of the public was subsequently better served by a non-custodial sentence." In other words, it was expected that such a sentence would rarely be imposed . 60 In my view, Mr.

Serov has not demonstrated highly exceptional circumstances that would warrant a sentence outside the normal range of sentencing for the offence of production of marihuana. This is not "a rare case" where a suspended sentence can satisfy the principles of sentencing and be considered a fit sentence. [ 45 ] I would add that I have carefully reviewed R. v. Barrons , 2017 NSSC 216 and Justice Arnold’s helpful review of suspended sentences (see paras. 39 – 56) and the offender’s background in that case (see para 47). [ 46 ] When I consider all of the circumstances of this case I am of the view that neither Mr.

Davison nor Mr. Habib has demonstrated exceptional circumstances such that either of their situations would fall into the rare case of a suspended sentence. In this regard, we cannot lose sight of the fact that the cannabis (marihuana) hydroponic grow operation was a rather significant commercial grow operation. A reasonable inference may be drawn that both offenders were in it for the money. The street value of the drugs was in the tens of thousands. This was not an insignificant cache of plants dedicated to personal use.

Previous like cases demonstrate jail sentences fit these crimes. [ 47 ] Having considered the totality of the matter I am of the view that Mr. Davison’s crimes warrant eight months’ incarceration and Mr. Habib’s require 12 months’ prison. The differential exists on account of Mr. Davison’s guilty plea and his rather irrelevant criminal record. To this I would add the ancillary orders requested by the Crown. Further, and for greater clarity and precision, I pass

sentence as follows: Edward Jonathan Habib [ 48 ] On the 1 st count of the indictment that you unlawfully produced cannabis (marihuana), a substance included in

Schedule II of the CDSA , and did thereby commit an offence contrary to s. 7(1) of the said Act – you are sentenced to 12 months incarceration. [ 49 ] On the second count of the indictment that you unlawfully had in your possession for the purpose of trafficking , not in excess of three kilograms, cannabis (marihuana), a substance included in

Schedule II of the CDSA and did thereby commit an offence contrary to s. 5(2) of the said Act you are sentenced to 4 months incarceration to run concurrently. [ 50 ] The following ancillary orders are granted: (

a) Weapons prohibition pursuant to s. 109 of the Criminal Code (life); (

b) DNA Order pursuant to s. 487.05 of the Criminal Code ; and (

c) Forfeiture of the items seized pursuant to s. 16 of the CDSA . Thomas Edward Davison [ 51 ] On the 1 st count of the indictment that you unlawfully produced cannabis (marihuana), a substance included in

Schedule II of the CDSA and did thereby commit an offence contrary to s. 7(1) of the said Act – you are sentenced to 8 months incarceration. [ 52 ] On the second count of the indictment that you unlawfully had in your possession for the purpose of trafficking , not in excess of three kilograms, cannabis (marihuana), a substance included in

Schedule II of the CDSA and did thereby commit an offence contrary to s. 5(2) of the said Act you are sentenced to 2.5 months incarceration to run concurrently. [ 53 ] The following ancillary orders are granted: (

a) Weapons prohibition pursuant to s. 109 of the Code (10 years); (

b) DNA Order pursuant to s. 487.05 of the Code; and (

c) Forfeiture of the items seized pursuant to s. 16 of the CDSA . Chipman, J.