R v Lima, 2017 SKCA 108

Court of Appeal for Saskatchewan Docket: CACR2945 Citation: R v Lima , 2017 SKCA 108 Date: 2017-11-14 Between: Loren Karl Lima Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Caldwell JJ.A. Disposition: Conviction appeal dismissed, sentence varied (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Caldwell On Appeal From: Provincial Court, Regina Appeal Heard: November 14, 2017 Counsel: F. Weisgerber, Q.C., for the Appellant Stephen Jordan for the Respondent Jackson J.A. I.

Introduction [ 1 ] Loren Lima was found guilty after trial of trafficking in marijuana. He received a suspended sentence with a six-month period of probation. He appeals his conviction and his sentence. [ 2 ] The marijuana charge arose in somewhat unusual circumstances. Mr. Lima’s brother was licenced, at the time, to produce and provide marijuana to someone entitled to receive it. Mr. Lima, who was himself a licenced medical marijuana user, took over his brother’s role while the latter was out of the country. Mr.

Lima has put forward a number of arguments in support of his contention that he should not have been convicted but, if he were, he should have received a conditional discharge. [ 3 ] When this matter was heard, the conviction appeal was dismissed and the sentence appeal allowed. Reasons were given orally, with written reasons to follow. These are those reasons. II. Background [ 4 ] Mr. Lima held an “Authorization to Possess”, or ATP, issued under the Marihuana Medical Access Regulations, SOR/2001- 227 [ MMAR ]. The ATP permitted him to produce medical marijuana for his own consumption.

Under the same regulations, his brother, Owen Lima, held a licence called a “Designated-Person Production Licence”, or DPL, allowing Owen Lima to produce medical marijuana for a designated person, B.R., who, in turn, was a licenced consumer of medical marijuana. Mr. Lima and his brother conducted their operations in the same house, but they were required to grow their plants in different rooms and to keep their operations separate. [ 5 ] In December of 2013, Mr. Lima’s brother left for the Philippines for personal reasons. On December 27, 2013, Mr.

Lima harvested his brother’s crop, packaged it, addressed it to B.R. and took it to the post office. The marijuana emitted such a strong smell that the post office employees contacted the police. The package turned out to contain 771 g of freshly cultivated marijuana. Mr. Lima was arrested and subsequently charged with trafficking in cannabis marijuana, contrary to s. 5(1) of the Controlled Drugs and Substances Act , SC 1996, c 19 [ CDSA ]. [ 6 ] At trial, Mr. Lima put forward a number of defences he believed gave him authority to act on his brother’s behalf. The learned trial judge rejected all of them.

We will consider the trial judge’s reasons in the context of each of the issues raised by Mr. Lima. III. Issues [ 7 ] Mr. Lima identifies the following issues: (

a) Did the learned trial judge err by failing to find that the Marihuana for Medical Purposes Regulations , SOR/2013-119 [ MMPR ] (also now repealed), applied in these circumstances so as to permit Mr. Lima’s brother to authorize him to assume his responsibilities to B.R.? (

b) Did the learned trial judge err by finding that the defence of mistake of fact was not available? (

c) Did the learned trial judge err by failing to find that the defence of colour of right applies in these circumstances?

(

d) Did the learned trial judge err by failing to apply the principle of de minimis non curat lex ? (

e) Did the learned sentencing judge err by concluding that a conditional discharge was not available in these circumstances and, if so, whether this Court should impose such a sentence? IV. Analysis A. Which regulations applied? [ 8 ] According to Mr. Lima, mailing cannabis marijuana to B.R. did not constitute trafficking contrary to s. 5(1) of the CDSA because his brother had authorized him to perform this act in his name under the MMPR . Under s. 3 of the MMPR , a licence holder may delegate authority to employees and agents: Possession – cannabis 3(3) The following persons may possess cannabis: (

a) a person who requires cannabis for their business as a licensed producer and who possesses it in accordance with

section 12; (

b) a person who requires cannabis for their business as a licensed dealer; (

c) a person who is employed as an inspector, an analyst, a peace officer, a member of the Royal Canadian Mounted Police or a member of the technical or scientific staff of a department of the government of Canada or of a province and who possesses the cannabis for the purposes of and in connection with their employment; or (

d) a person who is acting as the agent or mandatary of a person whom they have reasonable grounds to believe is a person referred to in paragraph (

c) and who possesses the cannabis for the purpose of assisting that person in the administration or enforcement of any Act or its regulations. … Employee, agent or mandatary – cannabis

(5) A person may possess cannabis if the person is an employee of or is acting as the agent or mandatary for a person referred to in paragraph (3)(

a) or ( b ), while acting in the course of their employment or their role as agent or mandatary. (Emphasis added) The MMAR , pursuant to which the brothers held their respective licences, contains no such provision. [ 9 ] Mr. Lima acknowledged that his brother’s licence was issued under s. 40 of the MMAR rather than s. 25 of the MMPR , but he argued that the law was in “significant flux”. According to Mr.

Lima, on the date of the offence, December 27, 2013, both the MMAR and the MMPR applied to medical marijuana producers like himself and his brother, such that his brother could delegate the task of sending the marijuana resulting in an exemption from criminal liability under the CDSA . [ 10 ] The trial judge did not accept this argument. He found that the MMPR did not apply.

In his written reasons, he wrote the following: [7] The second set of regulations: [the MMPR ] appears intended for larger operations. [The MMPR ] would allow a licensed producer to have personnel who have obtained security clearance for the specific grow operation to perform certain duties to grow and distribute the crop. [8] The accused brother’s license was for 25 plants, a small operation. The accused brother was not a licensed producer and could not designate his authority pursuant to the [ MMAR ]. [ 11 ] On appeal, Mr.

Lima challenges the trial judge’s conclusion that the MMPR applies only to “larger operations”. He submits that the MMPR came into effect in stages, with the intention that, when they were fully in effect, the MMAR would be repealed. He then refers to the effect of Allard v Canada , 2014 FC 280 , 451 FTR 45 [ Allard ], which prolonged the life of the MMAR until the Access to Cannabis for Medical Purposes Regulations , SOR/2016-230, came into force on August 24, 2016. These later regulations also grant the power to delegate to an agent: see ss. 3(3), 3(4), 3(5) and 22. [ 12 ] In short, Mr.

Lima submits the following (as taken from his factum): 20. If the MMPR applied, in whole or in part, to Loren and Owen’s operations, then the trial judge erred in concluding that it was not possible for Owen to delegate authority under his license to Loren. The trial judge ought to have considered the possibility that Owen was entitled to lawfully delegate authority under his license to Loren . (Emphasis added) [ 13 ] With respect, a possibility of application would not be enough. The trial judge was required to decide which regulations governed Mr. Lima’s brother’s activities.

His reasoning may not be complete, but his conclusion, in my respectful view, cannot be challenged. [ 14 ] As the Crown points out, the MMPR were intended to replace the MMAR . Under the MMAR , it was possible to grow

marijuana in one’s home. However, the effect of the MMPR was to eliminate operations like those of Mr. Lima and his brother – “[a] licensed producer must not conduct any activity … at a dwelling place” ( s. 13 of the MMPR ) – which means there never was a moment in time when the MMPR applied to the brothers’ operations. In part, this is why the constitutionality of the MMPR was challenged ( Allard at para 64 ). [ 15 ] Thus, we conclude the trial judge did not err when he concluded that the MMPR did not apply to Mr. Lima’s brother. Mr.

Lima’s brother held his licence under the MMAR , which did not provide for a power of delegation. As Green J. concluded in R v Zheng , 2015 ONCJ 30 [ Zheng ], “[t]he MMAR is conspicuously silent as to whether the ‘holder’ of a DPL may delegate or assign his or her authorization to produce, possess and keep marijuana (as set out in s. 34(1)) to agents or employees” (at para 46). [ 16 ] Mr. Lima sought to distinguish Zheng on two bases. First, unlike the accused in Zheng , Mr. Lima was a licenced and registered medical marijuana producer.

He maintained a medical marijuana operation on the same property as his brother. Second, the offence in Zheng occurred in 2012, which was prior to the enactment of the MMPR , so only one set of regulations could have applied in Zheng . Thus, according to Mr. Lima, Zheng is, therefore, inapplicable and distinguishable to the case at hand. [ 17 ] The status of being a licenced medical marijuana producer would not have changed the result in Zhen g. Mr. Lima’s status does not change the wording of the MMAR .

As Green J. pointed out in Zheng , the absence of a power of delegation is “consistent with the general tenor of the MMAR ”, which “is also reinforced by provisions that tightly restrict eligibility for DPLs and require applicants to make extensive disclosure of their personal circumstances, co-ordinates and backgrounds, including any adult criminal record for designated drug offences during the preceding ten years” (at para 46). While we appreciate that Mr.

Lima’s argument is important to him in relation to his honest belief defences, it must be noted that, even if the MMPR applied in some way to his brother’s operations as of the date of the offence, the only task his brother could delegate was what s. 3(3) and 3(5) of the MMPR allowed, which was the ability to possess but not to traffic in marijuana. Mr. Lima’s brother would not have been authorized to delegate the ability to “traffic”, i.e., to send marijuana to someone else, even if the recipient were entitled to receive and possess it. B. Reasonable belief [ 18 ] Mr.

Lima testified that he believed he could help his brother with his medical marijuana operation. The trial judge summarized that evidence: [9] The accused testified that he believed his actions were lawful.

Indeed if performed by his brother they would be lawful albeit the smell emitted would be a violation of the packaging shipping regulations. [10] The accused testified that “both of us were growing in the same facility and I was under the impression that I would just help him out”. [11] He testified that he at some unspecific time contacted Health Canada, and was told that “we could grow [our crop] in the same building, but both of our crops had to be in a separate room”. [12] On cross-examination he was asked if he cultivated his brother’s plants to which he responded “I’d help him out, he’d help me out”. (Unpublished trial decision, 8 December 2016 [ Trial Decision ]) [ 19 ] At trial, Crown counsel argued the honesty of Mr.

Lima’s belief was not relevant to the analysis because Mr. Lima’s mistake was one of law not of fact. Since the misstep was one of law, Mr. Lima’s mistaken belief would not afford him a defence: s. 19 of the Criminal Code , RSC 1985, c C-46. [ 20 ] In considering whether the nature of Mr. Lima’s mistake was one of law or fact, the trial judge concluded that it did not matter as he rejected the underlying bases for both, as explained in the following reasons taken from his decision: [17] The accused … was aware of the regulatory scheme as he had applied successfully for his own license.

Any belief held by the accused in regard to lawfully tending or distributing his brother’s grow operation is not reasonable or believable . [18] I note the cavalier manner taken to the regulations: according to the accused they worked each other’s crops, the marijuana sent to B.L. was emitting a strong noxious smell contrary to the transportation regulations and when opened by the police one bag had the accused name on it indicating packaging material from one operation was used for the other operation contrary to the direction to keep the operations separate. [19] The accused knew that regulations needed to be followed and ignored them.

He could not have an honest belief that his actions were covered by lawful authority . [20] The factual situation as I find it does not allow for a mistake of fact . He is guilty as charged. (Emphasis added, Trial Decision ) [ 21 ] Mr. Lima challenges this conclusion, saying the trial judge should have found he had an honest belief that he was entitled to assist his brother by mailing a package of marijuana to B.R. – in doing so, he points to this evidence: Q What do you know about his license? A His license is to grow marijuana for [B.R.]. …

Q What’s your understanding of what that license permits? … A Oh, my understanding is that my brother can grow marijuana for [B.R.]. Q Have you ever looked at the license? A Oh, yes. Yeah. Q Are there any restrictions printed on that license in terms of whether anyone can assist Owen, or -- A No, there isn’t. … Q Okay. And can you explain why it was that you -- that you came to have that marijuana shipped to [B.R.]? A [B.R.] gave me a call, and it had been just a certain time of the crops coming off, as they take four months for each crop.

And Owen had taken off to the Philippines to go get married, and it -- [B.R.] didn’t want to come all the way from Saskatoon down to Regina, and he put the pressure on me to send it. I didn’t really want to, but I did because I thought it was legal for me to do it. We both agreed that we thought it was legal to do it. Q What things did you consider in -- in reaching that conclusion that it was legal? A The fact that Owen had a designated -- or he’s a designated grower.

We’re growing -- both of us are growing in the same facility, and I was under the assumption that I could just help him out if I wanted to because we were -- we were doing it together. Q Did you have any discussions with Owen about this? A Yes. (Trial transcript, 10 March 2016, at T21–T22) [ 22 ] While these words support a finding of honest belief, they really do not tell the whole of the story. Under cross-examination, Mr. Lima admitted there was no reason for him to assume he could send marijuana under his brother’s licence to someone else: Q Okay. But there’s no reason for that assumption; is there?

A Yes, there is. Me and my brother are growing together, and I thought that we could do things together. That’s what I thought. That’s -- that’s just all I thought. That’s the truth. Q But that’s not -- that doesn’t say -- it doesn’t say that in your license or your brother’s license? A I was -- I -- I thought that we could. Q But why? There’s no reason for you to think that. I’m saying that’s not reasonable, sir. A Well, no there isn’t.

No, I guess not, no. (at T27) [ 23 ] And, indeed, it appears that it was not his brother who asked him to mail the marijuana to B.R., but rather his brother had left for the Philippines without making arrangements, such that it was B.R. who phoned Mr. Lima, who reluctantly carried out the task: Q Did you discuss with Owen whether you were to send the marijuana to [B.R.] or not to send it to him? A Yes. Yeah -- or, just let me think here. I -- no, I don’t think we did. (at T21–T22) [ 24 ] Thus, we conclude there is no basis to challenge the trial judge’s conclusion that Mr.

Lima did not have an honest belief that he was entitled to mail marijuana to B.R. Applying the standard of review applicable to an individual finding of fact, we cannot say it is “plainly contradicted by the evidence relied upon for that purpose …” ( R v Sinclair , 2011 SCC 40 at para 16 , [2011] 3 SCR 3). [ 25 ] While we have analyzed this aspect of the trial judge’s reasons through the lens of whether the trial judge had made a reversible error of fact in his assessment of Mr.

Lima’s evidence, we note the very strong argument that a mistaken belief in one’s authority to transport marijuana is not a mistake of fact, but rather a mistake of law for which no defence is afforded – as the Crown has

contended. On this point, see for example Zheng at paragraph 62. C. Colour of right [26] Mr. Lima has carved out a further argument based on “colour of right”. He states he had “an honest belief in the existence of astate of facts which, if it actually existed, would at law justify or excuse the act done” (R v Howson (1966), (ON CA),55 DLR (2d) 582 at para 10 (QL) (CA)), which thereby permits him a defence. As we understand the argument, Mr.

Lima submits it ispossible to argue in favour of a belief in lawful authority, which would somehow allow him to assert a mistake of fact as opposed to law. [27] He says this argument is different than his “honest belief” argument and it, too, had been placed before the trial judge. Inmaking this argument, Mr. Lima asserts that the defence of colour of right applies not only in the context of proprietary or possessoryrights, but in circumstances such as these – and it expands the ambit of what can be argued when a mistake of law is not available.

Forthis latter proposition, he relies upon R v Simpson, 2015 SCC 40 at para 31, [2015] 2 SCR 827 [Simpson]. Fundamentally, he argues thetrial judge erred by failing to find that the defence of colour of right applies in these circumstances. Given Mr. Lima’s understanding ofwhat he had argued at trial, he submits the trial judge erred by failing to consider this second argument. [28] The Crown resists this argument on the footing that it is raised for the first time on appeal.

Assuming that such an argument isavailable at law, and without resolving whether this is, or is not, a new argument, we must say there is no merit to it on the facts as foundby the trial judge. As Moldaver J. stated in Simpson, an assertion of a colour of right is merely a particular application of the doctrine ofmistake of fact (see Simpson at para 31). In this case, the trial judge wrote, “The accused knew that regulations needed to be followedand ignored them.

He could not have an honest belief that his actions were covered by lawful authority” (at para 19). [29] While the decision reasons are brief, they represent a clear finding supported on the evidence that Mr. Lima did not honestlybelieve he had his brother’s authority to mail the marijuana to B.R. This argument, too, must fail. D. The defence of de minimis non curat lex [30] Mr.

Lima asserts that the trial judge should have invoked the de minimis rule and acquitted him on the basis that his actionsdid not cause any of the harms the trafficking laws seek to condemn and his wrongdoing amounted essentially to breaching theequivalent of a regulatory offence. The following paragraph taken from Mr. Lima’s factum captures his argument: 43. The thrust of the Appellant’s submission is that his conduct is not the type of evil that the prohibition on trafficking seeks toaddress.

This criminal prohibition seeks to reduce the traffic in illicit drugs in order to minimize the evil of drug addiction in society. Themarijuana that Loren trafficked was not illicit, and it was not being trafficked to an addict – it was, instead, being provided for legitimate,prescribed medical use. This distinguishes Loren from virtually every other individual convicted of trafficking in Canada.

Unlike the vastmajority of traffickers, the drug the Appellant was dealing with was not illicit: it was lawfully grown and regulated by Health Canada.Unlike the vast majority of traffickers, the recipient of the drug trafficked by Loren was lawfully entitled to receive it: he had aprescription for medical marijuana, and this prescription covered only those plants that Loren “trafficked” to him. [31] Unlike the preceding argument, this is clearly a new argument raised for the first time on appeal, but we are content to addressit on the basis that no new evidence needs to have been adduced to consider it (see Performance Industries Ltd. v Sylvan Lake Golf &Tennis Club Ltd., 2002 SCC 19 at paras 32 and 33, [2002] 1 SCR 678).

However, the fact this argument is raised for the first time onappeal means the Court has received limited submissions on whether the de minimis principle is recognized in Canada: see, for example,Canadian Foundation for Children, Youth and the Law v Canada (Attorney General), 2004 SCC 4 at paras 202–204, [2004] 1 SCR 76[Canadian Foundation]; R v Kubassek (2004), (ON CA), 188 CCC (3d) 307 (Ont CA); R v Murdock (2003), (ON CA), 176 CCC (3d) 232 (Ont CA); R v R.H.L., 2008 NSCA 100, 270 NSR (2d) 123; and R v Gale, (NLPC), where the legitimacy of the defence is, itself, questioned.

Since we are satisfied that effect should not be given to the defence,and in light of the limited submissions made on the point, resolution of the controversy over the continued application of the principle isbest left for another day. With that caveat, we will proceed to assess that defence’s applicability to the facts as found by the trial judge inthis case. [32] In Canadian Foundation, McLachlan C.J. described the de minimis principle as being “vague and difficult in application” (atpara 44). In this case, Mr.

Lima is arguing not that the amount he tried to send to B.R. is small but that his action in mailing themarijuana should be considered a “small or trifling” matter. [33] Writing in dissent in Canadian Foundation, Arbour J. summarized the existing jurisprudence regarding the justification forinvoking the de minimis excuse: [204] Generally, the justifications for a de minimis excuse are that: (1) it reserves the application of the criminal law to seriousmisconduct; (2) it protects an accused from the stigma of a criminal conviction and from the imposition of severe penalties for relativelytrivial conduct; and (3) it saves courts from being swamped by an enormous number of trivial cases (K.

R. Hamilton, “De minimis NonCurat Lex” (December 1991), discussion paper mentioned in the Canadian Bar Association, Criminal Recodification Task Force Report,Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), at p. 189). In part, thetheory is based on a notion that the evil to be prevented by the offence

section has not actually occurred. This is consistent with the dualfundamental principle of criminal justice that there is no culpability for harmless and blameless conduct (see my opinion in R. v. Malmo–Levine, 2003 SCC 74 , [2003] 3 S.C.R. 571, at paras. 234–35 and 244). (Emphasis added)

[ 34 ] While recognizing the vague and uncertain nature of the de minimis excuse, it cannot be said that Mr. Lima’s conduct is “serious misconduct”, but nor is it “harmless and blameless”, to use the words of Arbour J. in Canadian Foundation at paragraph 204 . The licences that the two brothers held granted them the ability to engage in an activity that is foreclosed to most Canadians on penalty of criminal consequences, including the possibility of imprisonment. It is in this context that Mr. Lima’s actions must be viewed. [ 35 ] Mr.

Lima knew he had no express authority to supply medical marijuana to anyone else and the trial judge additionally found he lacked an honest belief as to his brother’s authority to delegate the right to traffic in marijuana. Indeed, Mr. Lima could not have been a DPL because he had a criminal record for possessing a prohibited substance (as prohibited by ss. 35 and 41 of the MMAR and under s. 26 (g)(

i) of the MMPR ). Further, in cross-examination, he ultimately admitted there was no basis for him to believe that he had his brother’s authority to supply B.R. with medical marijuana. [ 36 ] We agree with the submissions made on behalf of the Crown. The motivation to supply B.R. with medical marijuana on an ongoing basis was not purely altruistic. It was to pay the power bill for the residence in which Mr. Lima lived and in which Mr. Lima and his brother each grew their respective personal-licence marijuana and DLP marijuana. The offence extended beyond a momentary lapse in judgment. Mr.

Lima’s brother, the DPL holder, had been out of the country for approximately three weeks to a month at the time of the offence, during which time Mr. Lima grew medical marijuana in his residence beyond what he was legally authorized to do. Finally, the marijuana was trafficked in such a way that a significant odour escaped from the deficient packaging – a most basic aspect of the regulations under which the Lima brothers were operating. The odour disrupted the operation of the post office and alerted the public at large that a quantity of marijuana was present and in transit.

Compliance with the regulations that had permitted Mr. Lima to grow marijuana for his own use is a necessary element of the whole regime. In commenting on Mr. Lima’s activities, the trial judge made particular note of “the cavalier manner” in which Mr. Lima treated the regulations ( Trial Decision at para 18). [ 37 ] In applying a test that requires the Court to consider the seriousness of the conduct, we cannot say Mr. Lima’s act warrants being excused on the basis of the de minimis excuse. The degree of harm caused is best considered as part of the assessment of the fitness of sentence. E.

Sentence [ 38 ] The trial judge imposed a suspended sentence with probation for six months, coupled with a 10-year firearms order and a $200 surcharge. In doing so, he said that a discharge was not an available sentence in these circumstances: THE COURT: Yeah. Right. I believe that’s the case. Yeah, I -- I think the answer is I can’t under the legislation.

Accordingly, I’m going to suspend the passing of sentence, … place him on probation for a period of six months, and for the first two months, he shall be subject to a monthly search if the police have a reasonable suspicion of his -- of -- of his -- of his person, a vehicle, or residence. And there’s a surcharge, it would -- would come payable in six months in regard to this matter, which, again, I have no choice but to -- to impose by law. (Sentencing transcript, 8 December 2016, at T80) [ 39 ] Crown counsel concedes that the trial judge erred by concluding that a discharge was not available.

Section 730(1) of the Criminal Code states the following: Conditional and absolute discharge 730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed by a probation order made under subsection 731(2) [ 40 ] The offence of trafficking is set out in s. 5 of the CDSA : Trafficking in substance 5(1) No person shall traffic in a substance included in

Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance. … Punishment

(3) Every person who contravenes subsection (1) or (2) (

a) subject to paragraph (a.l), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and … (a.

l) if the subject matter of the offence is a substance included in

Schedule II in an amount that is no more than the amount set out for that substance in

Schedule VII, is guilty of an indictable offence and liable to imprisonment for a term of not more than five years less a day … .

[ 41 ]

Schedule II contains cannabis and its derivatives, and includes the fresh marijuana that formed the subject matter of this charge.

Schedule VII sets out trafficking amounts for cannabis as being 3kg. [ 42 ] Mr. Lima was convicted of trafficking 711 g of marijuana (0.711 kg). This is obviously under the 3 kg limit prescribed in

Schedule VII and, as a result, s. 5(3)(a.

l) of the CDSA applies. There is no minimum punishment for this offence, as the minimum punishment prescribed in s. 5 (a)(i)(A)–(

D) and s. 5 (a)(ii) is “subject to paragraph (a.l)”. The maximum punishment is imprisonment for a term of five years less a day. In short, as counsel for Mr. Lima indicated, and as Crown counsel now agrees, a discharge was always available pursuant to s. 730 of the Criminal Code . [ 43 ] Notwithstanding the Crown’s concession in this regard, the Crown argues that a six-month suspended sentence and probation is not an unfit sentence. Mr. Lima did not plead guilty. He lacked an honest belief as to his authority to mail the marijuana. He also has a criminal record. From 1981 to 2006, Mr.

Lima was convicted on seven occasions, including two convictions under the Narcotic Control Act , RSC 1985, c N-1 (repealed), and one under each of the Food and Drugs Act , RSC 1985, c F-27, and the CDSA . The Criminal Code offences include mischief, twice driving over the legal limit of alcohol, and failing to attend court.

According to the Crown, these seven offences show a distinct pattern of disregard for the law, particularly laws controlling drugs and alcohol. [ 44 ] While accepting the Crown’s arguments at full value, applying R v Lacasse , 2015 SCC 64 , [2015] 3 SCR 1089, there is no doubt that the trial judge erred in principle and the error had an impact on the sentence.

It is clear from reading the transcript that the trial judge was considering a conditional discharge: THE COURT: From a harm point of view, this has got to be about as low a level of trafficking as could be imagined in a law school exam and I will approach the sentencing on that -- on that basis. I’d be -- the -- the issue, of course, is -- on -- on a discharge is whether it is contrary to the public interest. He has one, two, three, four, five, six convictions, but they’re ten years old and would have a significant impact upon him.

I think I -- I think I just have to -- I -- I appreciate, you know, before I even go down that path, is a discharge available under this section, with a -- I mean there is a -- I guess the minimum penalty does not apply because of the amount. Am I correct on that or is the Crown just waiving that?

My understanding was that because of the amount, we were not in a -- because if it’s a minimum penalty applies, it’s irrelevant, discharge is not available, but I don’t think that’s the case . (Emphasis added, trial transcript, 7 April 2016, at T79) [ 45 ] After Crown counsel advised the trial judge that there was no minimum penalty but the offence was punishable by imprisonment for life, thereby precluding a conditional discharge under s. 730 , the trial judge agreed saying, “that’s my understanding of the law, although I was -- prepared to consider it” (at T80). [ 46 ] Having found an error that had an impact on the sentence, it falls to this Court to impose what it sees to be a fit sentence.

Mr. Lima is not entitled to an absolute discharge, but a conditional discharge appears to us to be the appropriate sentence. Mr. Lima, who was entitled to possess marijuana for his own purposes, mailed marijuana to a person who was likewise entitled to possess marijuana. V. Conclusion [ 47 ] In conclusion, the Court confirms the trial judge’s conclusion of guilt, orders that the suspended sentence order be set aside and a discharge be entered in its place, conditional upon the successful completion of the six months’ probation order imposed by the trial judge.