Citation: R v Wenaus, 2017 MBCA 61 Date: 20170616 Docket: AR16-30-08700 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) R. L. Rankin ) for the Appellant Appellant ) ) G. R.

Champagne- and - ) for the Respondent ) ELIJAH LEE WENAUS ) Appeal heard and ) Decision pronounced: (Accused) Respondent ) June 16, 2017 LEMAISTRE JA (for the Court): [1] The Crown seeks leave to appeal, and appeals, a one-year conditional discharge for a guilty plea to the offence ofproduction of marihuana. [2] The accused had 19 plants in the basement of his home that he was growing for his personal use.

In ordering theconditional discharge with 50 hours of community service, the sentencing judge considered his youth (he was 23 years old), the fact thathe had no criminal record and that he had been working full time for three and one-half years prior to the sentencing. [3] The accused is Aboriginal, and it would be fair to say that Gladue factors were glossed over (see R v Gladue, (SCC), [1999] 1 SCR 688). At the sentencing hearing, the Crown sought a fine of $1,900 (based on $100 per plant). At the appealhearing, the Crown indicated it was amenable to any disposition other than a custodial sentence.

The Crown fairly acknowledged that asuspended sentence with 50 hours of community service is the closest sentence to reflect the intended sentence by the sentencing judge. [4] The reason for the appeal is that the conditional discharge is an illegal sentence and is not available in light of section7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19 and

section 730 of the Criminal Code. The accused acknowledges theillegality of the sentence. Conditional discharges are not available for an offence where the maximum sentence is 14 years to lifeimprisonment. The maximum sentence for the offence of production of marihuana is 14 years’ imprisonment. [5] Accordingly, leave to appeal is granted. The conditional discharge is set aside and we would substitute a suspendedsentence of nine months with 50 hours of community service. The suspended sentence will be supervised only for the purpose of thecommunity service. In all other respects, the ancillary orders imposed by the sentencing judge will stand. JA JA