R. v. Hatt, 2018 NSCA 51

Nova Scotia Court of Appeal Citation: R. v. Hatt , 2018 NSCA 51 Date: 20180614 Docket: CAC 468078 Registry: Halifax Between: Kirby Alexander Hatt Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Anne Derrick Appeal Heard: May 15, 2018, in Halifax, Nova Scotia Subject: Criminal Law. Proof beyond a Reasonable Doubt. Sentence for Production of Marihuana. Simple Possession of Marihuana. Unsafe Storage of a Firearm. Possession of a Firearm while Prohibited.

Summary: [ 1 ] The appellant was convicted of possession and cultivation of marihuana, firearms offences, and possession of illegal cigarettes. He appealed on the basis that his convictions were unreasonable and unsupported by the evidence. He appealed against his global sentence of one year in jail for the drugs and firearms offences arguing that it was demonstrably unfit. He did not appeal the convictions relating to the illegal cigarettes. [ 2 ] Issues:

(1) Were the convictions on the drugs and weapons charges unreasonable and unsupported by the evidence?

(2) Was the sentence demonstrably unfit? Result: [ 3 ] The trial judge made errors in sentencing the appellant, overemphasized aggravating factors and failed to give adequate effect to the mitigating nature of certain facts which led to him imposing an excessive sentence for the drugs and firearms offences. A global sentence of one year is a disproportionate sentence, however the appellant’s prior related record although somewhat dated, the presence of the shotgun, and the unavailability of a conditional sentence make a jail sentence inevitable. A global sentence of three months is substituted.

As the trial judge credited the appellant with three months’ remand time his sentence is therefore deemed to have been served. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 9 pages. Nova Scotia Court of Appeal Citation: R. v. Hatt , 2018 NSCA 51 Date: 20180614 Docket: CAC 468078 Registry: Halifax Between:

Kirby Alexander Hatt Appellant v. Her Majesty the Queen Respondent Judges: Beveridge, Van den Eynden and Derrick, JJ.A. Appeal Heard: May 15, 2018, in Halifax, Nova Scotia Held: Appeal against convictions dismissed; appeal against sentence allowed and sentence varied per reasons for judgment of Derrick, J.A.; Beveridge and Van den Eynden, JJ.A. concurring. Counsel: Michael K. Power, Q.C., for the appellant Caroline Lirette, for the respondent Reasons for judgment: Introduction [ 4 ] Kirby Hatt appeals convictions for possession and cultivation of marihuana, firearms offences, and possession of illegal cigarettes.

He says his convictions were unreasonable and unsupported by the evidence. He is also appealing his sentence on the drugs and firearms charges on the basis that it is demonstrably unfit. [ 5 ] Mr. Hatt was convicted on May 16, 2017 by Judge Paul Scovil of the Provincial Court of Nova Scotia. He was sentenced on August 16, 2017 to a total period of incarceration of one year. He has been out on bail pending this appeal. [ 6 ] It is Mr.

Hatt’s contention that not only did the Crown’s case against him fall short of proof beyond a reasonable doubt, Judge Scovil should have accepted his Authorization to Possess Dried Marihuana and Personal-Use Production Licence as a defence to the drug charges. There is no merit in these arguments. [ 7 ] For the reasons that follow, I would dismiss Mr. Hatt’s appeal and uphold his convictions. As I will explain in due course, I am satisfied Mr. Hatt’s sentence for the drug and firearms charges should be varied as it is demonstrably unfit. The Charges and the Evidence at Trial [ 8 ] The charges against Mr.

Hatt arose from an R.C.M.P. and Bridgewater Police Department search of his isolated property in rural Lunenburg County. Mr. Hatt was arrested at the scene. The police seized 2500 grams of marihuana “bud” and some cannabis by- products, 39 marihuana plants growing outdoors, a loaded unsecured shotgun, and six cartons of illegal cigarettes. [ 9 ] The seizures by police led to Mr.

Hatt being charged with production of marihuana contrary to section 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“ CDSA ”); possession for the purpose of trafficking marihuana contrary to section 5(2) of the CDSA ; unsafe storage of a firearm contrary to section 86(2) of the Criminal Code of Canada, R.S.C. 1985, c. C-46; possession of a firearm while subject to a prohibition order contrary to

section 117.01(1) of the Criminal Code ; and possession of unstamped and unmarked tobacco contrary to

section 32 of the Excise Act , R.S.C. 1985, c. E-14 and

section 76 of the Regulations ( N.S. Reg. 63/1996 ) made pursuant to s. 92 of the Revenue Act , S.N.S. 1995-96, c. 17 respectively. [ 10 ] The evidence did not satisfy the trial judge beyond a reasonable doubt that Mr. Hatt possessed the marihuana for the purpose of trafficking. He noted the usual indicators of trafficking were absent; there were no score sheets, cellphone activity suggestive of trafficking, or evidence of traffic to and from Mr. Hatt’s residence. He accordingly acquitted Mr.

Hatt of the section 5(2) charge and convicted him of simple possession of marihuana, an offence under section 4(1) of the CDSA . [ 11 ] Mr. Hatt testified at trial in his own defence. He made a number of fatal admissions under direct and cross-examination. He admitted to possessing 25 of the outdoor plants and said the other 14 were “garbage” due to being moldy. He also claimed the moldy plants belonged to his girlfriend. He admitted to possessing the marihuana bud and the by-products. He admitted to knowing about the loaded shotgun in his bedroom and acknowledged he was subject to a firearms prohibition.

He acknowledged that the cigarettes were his although he claimed there were only three cartons in the house not the six seized by police. [ 12 ] Mr. Hatt testified that he had an authorization to possess the marihuana and a production licence, obtained in 2012 through Health Canada. By the time of his offences in September 2016 these had lapsed but were grandfathered pursuant to the Federal Court decision in Allard v. Canada , 2016 FC 236 . [ 13 ] Mr. Hatt was prescribed marihuana to treat chronic back pain. The licence authorized Mr.

Hatt to grow 25 plants indoors and have 1125 grams in storage at his mother’s home in Musquodoboit where he lived in 2012.

Mr. Hatt’s Convictions [ 14 ] The trial judge had ample evidence, including from Mr. Hatt himself, that he was unlawfully producing and possessing marihuana. He found that Mr. Hatt’s authorization and licence afforded him no defence. Mr. Hatt had not governed himself in accordance with the restrictions he was required to operate within to lawfully produce and possess marihuana. The authorization and licence explicitly limited Mr. Hatt to producing 25 indoor plants at the Musquodoboit address.

He had too much stored marihuana and too many plants, was growing them outdoors, and in the wrong location. [ 15 ] The trial judge also found the evidence conclusively established that Mr. Hatt was in possession of the loaded, unsecured shotgun. His father’s evidence that he owned a similar shotgun and often left it at Mr. Hatt’s did not change the fact that Mr. Hatt’s knowledge and control of the seized gun - it was stored in his bedroom - satisfied the legal definition for possession. And Mr. Hatt’s admission that he was subject to a firearms prohibition order sealed his conviction on that charge.

He told the court the illegal cigarettes were his which left no reasonable doubt about his guilt on the Excise Act and Revenue Act charges. [ 16 ] Mr. Hatt’s appeal against his convictions is wholly without merit. Judge Scovil’s verdicts were firmly anchored in the evidence and entirely reasonable. The Sentence Imposed on Mr. Hatt [ 17 ] The trial judge sentenced Mr. Hatt to one year incarceration on each of the drug charges, to run concurrently.

He imposed concurrent custodial sentences of six months for the two firearms offences, sentences that he made concurrent to the one year for the drug charges. [ 18 ] The sentences reflected what Crown counsel were seeking. Mr. Hatt’s counsel, Mr. Power, argued for a “time served” sentence for the drug charges and a conditional sentence order of unspecified length for the firearms charges. Mr.

Power took no issue with the statutorily-mandated fines for the Excise Act and Revenue Act offences or the ancillary orders under the Criminal Code and those fines and orders are not being appealed. [ 19 ] The trial judge awarded Mr. Hatt a remand credit of one and one-half days for each of the 64 days he had spent in pre-trial custody, despite the fact that his remand had been the result of a breach of recognizance and a failure to show cause for release. The Crown was non-committal about whether this should disentitle Mr.

Hatt to the enhanced credit and indicated he was leaving it to the trial judge’s discretion. [ 20 ] The remand credit took 96 days off the 365 days Mr. Hatt received as a total sentence for all the charges. That left Mr. Hatt with a jail sentence to serve of 269 days. The Reasons of the Sentencing Judge [ 21 ] In his oral reasons, the trial judge emphasized Mr. Hatt’s prior related record for CDSA and firearms offences, the “large amount of marihuana” involved, and the presence of the loaded shotgun. He recited the purpose and principles of sentencing set out in

section 718 of the Criminal Code , and the fundamental principle of proportionality in

section 718.1 , the applicability of aggravating and mitigating factors, and several principles under

section 718.2 , notably parity and restraint. He read section 10(1) of the CDSA setting out the purpose of sentencing in relation to drug offences. He then segued immediately into section 10(2), Factors to be Taken Into Consideration , stating: If a person is convicted of a designated offence for which the court is not required to impose a minimum punishment, the court imposing the sentence on a person shall consider any of the relevant aggravating features that include that the person: used, carried or threatened to use a weapon. [ 22 ] The trial judge concluded his review of statutory provisions by noting that section 10(2) (

b) of the CDSA identifies a previous conviction for “a designated substance offence” as an aggravating factor. [ 23 ] At this point, the trial judge enumerated the aggravating and mitigating factors in Mr. Hatt’s case: …In relation to this, the mitigating factors, I find, are the fact that he’s got family support. He’s in ill health, I think that everyone would agree that. (sic) Aggravating factors are the large amount of marihuana that he was – had in possession and was growing. The fact he has a prior firearms record, as indicated; six separate ones. The fact that he has a prior CDSA record.

The fact that this was a loaded gun, available for him, at the ready, which is – has long been recognized in law, a serious aggravating feature, when dealing with drug charges… [ 24 ] Judge Scovil noted that Mr. Hatt’s possession and production of marihuana was outside the authorized scope of his prior authorization and licence and concluded by saying that “…given all those factors, what has been put forward by the Federal Crown is a very reasonable sentence…” He viewed the firearms offences as “serious” and accepted the Provincial Crown’s recommendation of six months concurrent on each. Mr.

Hatt’s Prior Record [ 25 ] As the trial judge noted, Mr. Hatt had a prior criminal record for CDSA and firearms offences. The previous convictions for

firearms offences - the “six separate ones” he mentioned in his sentencing decision - were for careless use of a firearm contrary to section 86(1) of the Criminal Code on December 6, 2000, November 28, 2011 x 2, and August 30, 2012 and for pointing a firearm contrary to section 87(2) and possession of a firearm while prohibited contrary to

section 117.01(1) on October 23, 2012. [ 26 ] Mr. Hatt’s more recent convictions on November 28, 2011, August 30, 2012 and October 23, 2012 did not result in incarceration. On November 28, 2011 he received a six month conditional sentence order for convictions for production and possession of a substance ( CDSA sections 7(1) and 4(1) ), and the two section 86(1) offences. The offences were committed on April 8, 2010 and pre-dated Mr.

Hatt’s application for his medical marihuana authorization and licence. (On appeal, the Crown conceded it was reasonable to infer from the sentence imposed that the substance was marihuana.) On August 30, 2012 Mr. Hatt was fined three hundred dollars for careless storage of a firearm. On October 23, 2012 Mr. Hatt was given a conditional sentence totalling one year which included 121 days for an assault conviction. Is the Sentence Imposed on Mr.

Hatt Demonstrably Unfit? [ 27 ] Appellate intervention in an appeal against sentence is constrained by a high level of deference for the sentence imposed at trial: …an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. ( R. v.

Lacasse , 2015 SCC 64 , at para. 44 ) [ 28 ] If a sentencing judge errs in law or principle, deference gives way to the appellate court’s right to fashion the appropriate sentence ( R. v. Landry , 2016 NSCA 53 , at para. 36 ). Proportionality is “the cardinal principle” to be applied in appellate consideration of what constitutes a fit sentence ( Lacasse , at para. 11 ). Where the appeal concerns a global sentence as it does here, the court’s “overriding concern is whether the total sentence is a fit one” ( R. v.

Ruddick , 2009 NSCA 126 , at para. 6 ). [ 29 ] I have concluded that the trial judge’s errors in sentencing Mr. Hatt, his overemphasis of aggravating factors and failure to give adequate effect to the mitigating nature of certain facts, led him to impose excessive sentences for the CDSA and firearms offences. Appellate intervention is therefore required. [ 30 ] I find the trial judge placed undue weight on a combination of factors - Mr. Hatt’s prior record and his possession of the loaded, unsecured firearm, and attributed unwarranted significance to where he was living.

As I noted earlier, the trial judge specifically recited section 10(2) of the CDSA with its reference to using, carrying or threatening to use a weapon, none of which applied on the facts he had before him. Mr. Hatt’s possession of the shotgun did not constitute “use” of the firearm. ( R. v. Steele , 2007 SCC 36 , at paras. 28 and 32 ) [ 31 ] It is not that a firearm located in the home of a person growing marihuana is an irrelevant factor in a CDSA sentencing. It will often be an aggravating factor and the trial judge was entitled to treat the shotgun in Mr. Hatt’s bedroom as such.

However, his inclusion of section 10(2) of the CDSA in his chain of reasoning leads me to conclude that he overemphasized the presence of the gun in his assessment of a proportionate sentence for Mr. Hatt. [ 32 ] The trial judge’s comments about Mr. Hatt’s isolated residence – he lived in a trailer in a remote location in Lunenburg County – have caused me to conclude that he inferred an aggravating factor for which there was no evidence. In his decision he observed that Mr. Hatt was growing his marihuana “in the backwoods” possibly to avoid detection. The evidence at trial established that Mr.

Hatt was living in close proximity to, if not on, a very large tract of land owned for many years by his father. After positing the avoidance of detection as Mr. Hatt’s reason for living in the woods, the trial judge immediately went on to say, “In relation to this, it is important to consider the prior record. And I think that’s important in the long-term perspective.” This conflation of where Mr.

Hatt was living with his previous convictions for production and possession contributed to a disproportionately heavy sentence. [ 33 ] The trial judge in my view failed to consider factors that should have mitigated Mr. Hatt’s sentence: the principle of restraint – this was Mr. Hatt’s first actual jail sentence, the fact that Mr. Hatt had an authorization and licence which the Crown on appeal acknowledged had some mitigating value, and the gap in Mr. Hatt’s CDSA record of six and half years. Mr. Hatt’s reason for growing marihuana to treat serious and chronic back pain should also have been mitigating.

The one-year sentence for production, and the imposition of a one-year concurrent sentence for the possession conviction, indicate that these mitigating factors were afforded inadequate weight by the trial judge. [ 34 ] Neither of the Crowns – the Federal Crown dealing with the CDSA offences and the Provincial Crown dealing with the firearms offences – nor the Defence, provided the trial judge with any cases or a sentencing range. In fairness, the range for non- commercial marihuana grow operations undertaken for treatment of health conditions is broad and includes, fines ( R. v.

Simpson , 2008 NSSC 57 ), probation ( R. v. Baillie , 2016 NSPC 11 ), conditional sentences of imprisonment when they were available ( R. v. MacIvor , 2003 NSCA 60 ; R. v. Jones , 2015 ONCJ 380 ), and, in cases with more aggravating factors, short terms of actual incarceration ( R. v. Johnson and McLuskey , 2016 ONSC 180 , at paras. 36 and 59 ). [ 35 ] It is a different story where the marihuana production is commercial. The Ruddick case I mentioned in paragraph 25 provides a useful comparator. Although the primary focus of Mr.

Ruddick’s appeal was the seven-year jointly-recommended sentence he received for aggravated assault, he was also sentenced to one year for a commercial marihuana grow-op. He had a long record and “might well have received a consecutive sentence in excess of one year…” for the production conviction ( Ruddick , at para. 11 ). [ 36 ] Mr. Hatt was not growing commercially. The trial judge found the evidence of his possession failed to establish that he possessed the marihuana for the purpose of trafficking.

In MacIvor , this Court noted those as “important considerations in crafting a fit sentence...” ( MacIvor , supra , at para. 28 ) They were given virtually no weight here. Indeed, I conclude that imported into the sentence

imposed on Mr. Hatt was a lingering suspicion about the nature of the marihuana production. Conclusion [ 37 ] Mr. Hatt’s prior related record although somewhat dated, the presence of the shotgun, and the unavailability of a conditional sentence made it inevitable that he would receive a sentence of incarceration for the CDSA and firearms convictions. I find a global sentence of three months to be a proportionate sentence for Mr. Hatt. Mr. Hatt served the equivalent of three months’ remand time.

For the reasons I have given, leave to appeal sentence is granted, the sentence imposed by the trial judge is varied and a sentence of time served is substituted. As noted earlier, the ancillary orders and the fines for the convictions under the Excise Act and Revenue Act were not appealed. Derrick, J.A. Concurred in: Beveridge, J.A. Van den Eydnen, J.A.