R. v. Jacobson (M.G.), (2006) 209 O.A.C. 162 (CA)

• Judge: Rosenberg, Borins and Lang, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 09, 2006
• Jurisdiction: Ontario
• Citations: (2006), 209 O.A.C. 162 (CA);2006 CanLII 12292 (NS CA);2006 CanLII 12292 (ON CA);207 CCC (3d) 270;37 CR (6th) 320;[2006] CarswellOnt 2331;[2006] OJ No 1527 (QL);141 CRR (2d) 112;209 OAC 162;69 WCB (2d) 351

R. v. Jacobson (M.G.) (2006), 209 O.A.C. 162 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. AP.086

Her Majesty the Queen (respondent) v. Michael Gary Jacobson (appellant)

(C43119)

Indexed As: R. v. Jacobson (M.G.)

Ontario Court of Appeal

Rosenberg, Borins and Lang, JJ.A.

April 19, 2006.

Summary:

The accused was convicted of producing marijuana and possession of marijuana for the purpose of trafficking. He was sentenced to six months' imprisonment followed by 18 months' probation. He appealed his convictions, arguing that the search warrant based in part on a "Crimestoppers" tip was invalid and the evidence respecting a marijuana cultivation operation at his home should have been excluded under s. 24 of the Charter. The accused also appealed the sentence, seeking a conditional sentence.

The Ontario Court of Appeal dismissed the conviction appeal but allowed the sentence appeal, substituting an 18 month conditional sentence.

Criminal Law - Topic 3097

Special powers - Issue of search warrants - Contents of information or application for issue of - The accused was convicted of producing marijuana (a home grow operation) and possession of marijuana for the purpose of trafficking - He appealed, arguing that the search warrant was invalid and the evidence should have been excluded - The warrant was based in part on an anonymous "Crimestoppers" tip - The evidence showed that the tipster had only a suspicion of criminal activity - The trial judge relied on the tip, as confirmed in part by the police, to find that the search warrant was properly granted and that the search was reasonable and the evidence admissible - The Ontario Court of Appeal held that the trial judge erred in relying on the informer's tip to support the warrant; however, there was enough other information from the police officer's observations to support issuance of the warrant - A reasonable inference based on the officer's experience was that the house and garage were being used to grow marijuana - The court stated that if the inference of specific criminal activity was a reasonable inference from the facts, the warrant could be issued - Thus the warrant was valid and accordingly the appeal was dismissed - See paragraphs 1 to 23.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - The accused was convicted of producing marijuana (a home grow operation) and possession of marijuana for the purpose of trafficking - The home grow operation was fairly sophisticated and the plants could have produced a substantial amount of saleable marijuana which could wholesale for between $130,000 and $208,000 - He was 33 years old - Had received a conditional discharge on a prior charge for simple possession of hashish - Daily use of marijuana since age 15 - After these convictions, attended a rehabilitation programme - Prognosis was guarded - Sporadic employment record - Depression issues - He was sentenced to six months' imprisonment to be followed by 18 months' probation - He appealed his sentence, arguing that a conditional sentence was appropriate - The Ontario Court of Appeal noted that the original sentence was within the appropriate range and the trial judge's reasons disclosed no error in principle; however, having regard to fresh evidence filed on appeal respecting the accused's mental state and the effects of a custodial sentence, the court allowed the appeal and imposed an 18 month conditional sentence - See paragraphs 24 to 36.

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for the purposes of trafficking) - [See Criminal Law - Topic 5720.4 ]

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - [See Criminal Law - Topic 5720.4 ].

Narcotic Control - Topic 2043

Search and seizure - Setting aside search warrants - Grounds - Information, sufficiency of form and contents - [See Criminal Law - Topic 3097 ]

Cases Noticed:

R. v. Debot (1989), 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 12].

R. v. Plant (R.S.) (1993), 157 N.R. 321; 145 A.R. 104; 55 W.A.C. 104; 84 C.C.C.(3d) 203 (S.C.C.), refd to. [para. 12, footnote 1].

R. v. Kesselring (A.C.) (2000), 132 O.A.C. 41; 145 C.C.C.(3d) 119 (C.A.), refd to. [para. 12].

R. v. Nguyen, [2002] O.J. No. 5490 (C.A.), refd to. [para. 27, footnote 2].

R. v. Lévesque (R.) (2000), 260 N.R. 165; 148 C.C.C.(3d) 193 (S.C.C.), refd to. [para. 29].

R. v. Shahnawaz (A.M.) (2000), 137 O.A.C. 363; 149 C.C.C.(3d) 97 (C.A.), refd to. [para. 32].

Counsel:

Alan D. Gold, for the appellant;

John North, for the respondent.

This appeal was heard on March 9, 2006, before Rosenberg, Borins and Lang, JJ.A., of the Ontario Court of Appeal. Rosenberg, J.A., delivered the following judgment for the court which was released on April 19, 2006.