What to do with a 69-year-old first offender in cannabis case

Law360 Canada (February 6, 2024, 11:35 AM EST) --

John Hill

Craig Ferguson thought he had a better idea. Ferguson bought Pete Muileboom’s farm back in 2013 and decided there was more money to be made cultivating marijuana than continuing to grow tomatoes.

Ferguson allowed the Muileboom family to stay on living rent-free. Ferguson incorporated Muileboom Organics and paid Pete and four other labourers a modest salary.

The farming operation was successful from a cultivation standpoint; from a business perspective, things were handled more haphazardly. Initially, there were four personal production licences to grow cannabis on the property. Still, one of those had expired, and none were in the name of Pete Muileboom, nor was he named as a designated grower.

The way the operation was conducted raised no eyebrows until police were called in September 2016 after armed men tried to rob a greenhouse in the middle of the night. Police discovered that the thieves made off with very little. More concerning was that the greenhouse was stocked with 3,390 plants when the production licences allowed 513 plants. Police seized the illegal plants, warned Muileboom of the illegality and left without laying charges.

By 2017, Ferguson had obtained his personal production licences to grow 488 plants. The police, however, caught wind that something might be amiss. Once again, the police attended the farm and found Muileboom growing 2,083 plants. He was charged, this time, with possession of marijuana for the purpose of trafficking. Ferguson was charged similarly, and the seized overage in plant production was used as evidence against him.

For his part, Muileboom pleaded guilty to his charges but volunteered to testify against Ferguson, who faced four counts of possession for the purpose of trafficking. Ferguson did not testify at trial. He was found guilty. For the 2016 seizure, Ferguson was fined $100,000 on the production count and $1 for the trafficking count. The 2017 seizure resulted in a penalty of two years less a day imprisonment, concurrent probation orders of 18 months, and 240 hours of community service. Ferguson appealed to the Ontario Court of Appeal with judgment handed down on Dec. 29, 2023 (R. v. Ferguson 2023 ONCA 870). On the conviction appeal, Ferguson claimed the trial judge erred in incorrectly assessing the mens rea and the appraisal of credibility.

Ferguson claimed confusion or ignorance about the quantities he had produced. He submitted that he was unaware that the quantities violated his licence. This, the Appeal Court pointed out, describes a mistake of law, not a mistake of fact, and is not a recognized defence (R. v. Fan 2021 ONCA 674).

Ferguson also suggested an official at Health Canada had misled him. This, the Court of Appeal allowed, would have constituted a defence had the matter been developed at trial. The possibility of officially induced error had not been developed when the onus was on the appellant to have done so at trial. It cannot now be raised for the first time on appeal (R. v. Forster [1992] 1 S.C.R. 339, Lévis (City) v. Tétreault: Lévis (City) v. 2629-4470 Québec inc. 2006 SCC 12)

On the credibility issue, the Court of Appeal accepted that the trial judge carefully assessed credibility in accepting the evidence of Muileboom following the principles enunciated in R. v. W. (D.) [1991] 1 S.C.R. 742. The Appeal Court also found no basis for the trial judge failing to consider reasonable alternatives inconsistent with guilt as allowed under R. v. Villaroman 2016 SCC 33. The trial judge rejected that defence, and there is no basis to consider it further. The conviction appeal failed.

The Court of Appeal was much more generous in allowing the sentence appeal. While noting that general and specific deterrence is necessary where offenders are driven by financial gain (R. v. Roks. 2011 ONCA 526), here Ferguson’s financial gain was negligible at best, and he lacked a criminal record. In this case, appellate intervention is necessary to correct an error in principle (R. v. Lacasse 2015 SCC 64).

Ferguson is 69 years old, a first-time offender still working at a low-paying job. He had made efforts to operate legally. The Appeal Court eliminated the electronic monitoring conditions. The probation order was seen as punitive, not rehabilitative, and therefore set aside. It is refreshing to see an Appeal Court look to an individual’s situation in designing a fit sentence instead of seeing denunciation and deterrence as a shorthand for imposing a sentence that ignores rehabilitation.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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