Ontario Court of Appeal reduces marijuana producer's sentence for onerous incarceration conditions

Neither a party’s difficulty in calling a witness nor his guilty plea’s timing that contributed to delays was wrongful or bad conduct that would justify limiting the enhanced credit he should get for pre-sentence custody, the Ontario Court of Appeal has found.

In R. v. Schlaepfer, 2022 ONCA 566, the appellant was detained on March 13, 2016, and let out on May 17 on interim judicial release. In 2018, he pled guilty to one count of production of marijuana relating to a substantial grow operation on a property he owned and leased to tenants.

In 2019, a judge sentenced the appellant to 14 months in custody, less 4.2 months of credit, broken down as follows:

• 3.2 months of credit on a 1.5-to-one basis for pre-sentence custody
• a further one-month reduction in line with R. v. Duncan, 2016 ONCA 754, given that the appellant experienced onerous incarceration conditions – specifically difficulties receiving necessary and timely medical and dental treatment – during the pre-sentence custodial period.

After applying the credit, the appellant had to serve a remaining 9.8 months for his net custodial sentence. On appeal, he challenged the sentencing judge’s assessment of the mitigating effect of his interim judicial release conditions pursuant to R. v. Downes, 2006 CanLII 3957 (ON CA).

Court of Appeal subtracts 5 months

The Ontario Court of Appeal allowed the appeal, set aside the appellant’s sentence, and substituted a 4.8-month net sentence left to be served.

The appellate court found that the sentencing judge made two errors. First, the judge denied the appellant enhanced Downes credit based on his legitimate exercise of his rights. The judge should not have attributed most of the delays to the appellant, who was not at fault for wanting to call an important witness.

The delay occurred due to difficulties in ensuring that a representative from the Central North Correctional Centre would respond to the appellant’s subpoena, attend with his medical records, and testify about deficiencies in his medical and dental care while in pre-sentence custody, the appellate court said. This delay did not amount to wrongful or bad conduct that would warrant limiting enhanced credit that the appellant should receive for pre-sentence custody.

The second error that the appellate court identified involved the judge’s failure to consider the punitive impact of onerous release conditions imposed on the appellant. The Court of Appeal disagreed with the sentencing judge’s conclusion that, because the appellant received appropriate medical care for his complex medical issues, his release conditions were not onerous.

Because of these errors, a fresh analysis was appropriate. The appellate court found the 14-month sentence that the judge imposed fit in the circumstances. However, the lack of adequate care for the appellant’s unstable and untreated complex medical condition for two years while on interim judicial release was akin to punishment, which should mitigate his sentence.

Thus, the appellate court reduced the appellant’s sentence by an additional five months, including the additional three days at a 1.5-to-one basis. The court said that the 9.8‑month credit that he requested was excessive, unreasonable, and unwarranted in the circumstances.