- v. M.T. — Ontario Court of Justice, Peterborough County (Central East Region) · Defence counsel: Jake Shen, Shen’s Law Professional Corporation
A client with no criminal record faced two straight indictable Cannabis Act counts arising from an outdoor cannabis grow on a rural Ontario property. The Crown elected to proceed by indictment, screened the file to proceed on the charges as laid, and sought a weapons prohibition under s. 109 of the Criminal Code, a DNA order and forfeiture of everything seized on conviction. No diversion was offered. The case ended with a conditional discharge under s. 730 of the Criminal Code — a finding of guilt with no conviction registered.
Result at a glance
- Charges: Cannabis Act s. 12(6)(a) — cultivating, propagating or harvesting cannabis at a place that is not the person’s dwelling-house; and s. 9(2) — possession of cannabis for the purpose of distributing.
- Crown election: by indictment. Both counts carry a maximum of 14 years’ imprisonment.
- Crown screening position: proceed with the charges as laid; on conviction, seek a DNA order, a weapons prohibition under s. 109 of the Criminal Code, and an order of forfeiture of the items seized.
- Court: Ontario Court of Justice, Peterborough County (Central East Region).
- Result: a conditional discharge under s. 730 of the Criminal Code, one year of non-reporting probation under s. 731(1) on statutory terms only, and forfeiture of the seized cannabis, plants and equipment. No conviction was registered.
- Counsel: Jake Shen, criminal defence lawyer, Shen’s Law Professional Corporation (Markham · Toronto · Gilford).
What the case was about
A provincial police street-crime unit received information and photographs suggesting a large outdoor cannabis grow on a rural property. Police made inquiries with Health Canada and learned that a medical cannabis production registration was attached to the property, authorizing a fixed number of indoor plants in the name of a registered individual. The photographs appeared to show far more plants than the registration allowed.
Police obtained a Cannabis Act search warrant, attended the property and located a number of cannabis plants exceeding the amount permitted under the registration. Several people were present. Our client — a Canadian citizen, employed, a parent of two, and with no criminal record of any kind — was arrested and charged with cultivation under s. 12(6)(a) and possession for the purpose of distribution under s. 9(2) of the Cannabis Act.
Why the exposure was serious
Cannabis is legal in Canada, which leads many people to assume that a cannabis charge is a minor matter. It is not. Production and distribution offences under the Cannabis Act remain among the most serious drug offences in Canadian law:
- Both counts are indictable and carry a maximum of 14 years’ imprisonment.
- The Crown had already elected to proceed by indictment and had screened the file for a conviction, with ancillary orders including a weapons prohibition under s. 109 of the Criminal Code and a DNA order.
- A conviction for cannabis production or distribution is one of the hardest entries to explain on a criminal record check. Our client worked in a trade where employer and site record checks are routine, and he was his family’s primary earner. A conviction would have followed him for the rest of his working life.
How the defence was built
1. Disclosure — asked for, chased, and read in full
Three written disclosure requests went to the Crown over roughly ten months. The search warrant and the Information to Obtain (the sworn document police must put before a justice to get a warrant) took about six months to arrive. Until the ITO is in hand, no one can honestly assess the strength of a warrant-based prosecution — so the delay itself became part of the record.
2. Reading the whole record, not just the synopsis
The disclosure ran to seventeen officers’ notebooks plus exhibit and property logs, the report to a justice, aerial and drone photography of the property, and the Health Canada licensing records. The lead investigator’s handwritten notes were transcribed into typed form so they could be compared line by line against the police synopsis and against the sworn ITO. Inconsistencies only surface when the underlying documents are read against each other — never from the Crown’s summary alone.
3. Two live Charter issues, documented early
- Section 8 (unreasonable search and seizure): the sufficiency of the Information to Obtain and the scope of the warrant executed on the property. Jake also attended the site and noticed that the officer was not able to make the observations as the affiant stated in the Information to Obtain for the search warrant.
- Section 10(b) (right to counsel): The arresting officers did a lip service to M.T.’s rights to counsel without ensuring whether M.T. actually understood his right. Further, one of the arresting officers questioned M.T. before he had a chance to speak with his counsel.
Both issues were identified, documented and put to the Crown well before any trial date — not saved for the courthouse steps. A Charter issue the Crown has seen, in writing, with the transcript references attached, changes a resolution discussion. One raised for the first time on the morning of trial usually does not.
4. A mitigation record built before it was needed
A full plea and sentencing package was assembled: proof of volunteer work in the community, a community-service component already completed before the sentencing date, employment history, and the family circumstances that made a record disproportionately damaging. Sentencing material of that kind is persuasive because it is documented and verifiable, not because it is argued well.
5. Negotiating from a file that was ready for trial
The joint submission that resolved the case was possible because trial remained a genuine option. Where the defence has the ITO, has transcribed the notes, has articulated the Charter issues and has the sentencing material ready, a resolution reflects the real strength of the case rather than the pressure of a looming date.
The result
Our client entered a guilty plea on an agreed statement of facts. The joint submission was accepted in full:
- A conditional discharge under s. 730 of the Criminal Code— a finding of guilt with no conviction registered;
- One year of probation under s. 731(1) of the Criminal Code, non-reporting, on statutory terms only;
- Forfeiture of the seized cannabis, cannabis plants and related equipment.
There was no jail, no reporting obligation, no weapons prohibition and no criminal conviction. Under the Criminal Records Act, the record of a conditional discharge is removed from the RCMP’s automated records three years after the probation period ends, and a person who receives a discharge has not been convicted of the offence.
Frequently asked questions
Is a conditional discharge a criminal record?
A conditional discharge is a finding of guilt without a conviction. The person is discharged on conditions — usually a period of probation — and once those conditions are completed, no conviction is entered. Under the Criminal Records Act the entry is purged from the RCMP database three years after probation ends (one year for an absolute discharge). Until it is purged it can still appear on certain police record checks, so the timing matters.
Can I be charged if there is a medical cannabis licence on the property?
Yes. A Health Canada registration authorizes a named person to produce a specified number of plants at a specified location for their own medical purposes. Plants beyond that number, plants produced by someone who is not the registered person, or production at a site other than the registered one all fall outside the authorization. A licence attached to the address is not a defence on its own — but what the registration actually says, and how police interpreted it, is very often a live issue.
What is Cannabis Act s. 12(6)(a)?
Section 12(6)(a) of the Cannabis Act makes it an offence to cultivate, propagate or harvest any cannabis plant at a place that is not the person’s dwelling-house, other than as authorized. Prosecuted by indictment, it carries a maximum of 14 years’ imprisonment.
What is Cannabis Act s. 9(2)?
Section 9(2) makes it an offence to possess cannabis for the purpose of distributing it contrary to the Act. It, too, carries a maximum of 14 years on indictment. The Crown usually proves purpose by inference from quantity, packaging, equipment and surrounding circumstances — each of which can be examined and challenged.
Does pleading guilty always mean a criminal record?
No. Section 730 of the Criminal Code allows a court, where it is in the accused’s interest and not contrary to the public interest, to discharge a person absolutely or on conditions instead of convicting them. Whether a discharge is realistically available depends on the offence, the record, the circumstances and — in practice — on how well the mitigation is documented.
Why does the Information to Obtain matter so much?
The ITO is the sworn information police put before a justice to obtain a search warrant. If it is insufficient, misleading or overstated, the warrant may not survive a challenge under s. 8 of the Charter, and the evidence found may be excluded under s. 24(2). Delay in receiving the ITO delays the only analysis that can tell you whether the case is defensible.
Takeaways
- A cannabis charge in a legal-cannabis country is not a minor charge. Production and distribution counts under the Cannabis Act are indictable, with 14-year maximums and ancillary orders attached.
- A registration or licence connected to the property changes the analysis but does not end it. What the document authorizes, and who it authorizes, is where the case is often won or lost.
- Outcomes that avoid a conviction are built from paperwork: complete disclosure, the ITO, transcribed notes, documented Charter issues, and a sentencing record assembled in advance.
Disclaimer
This article describes one matter and is provided for general information only. It is not legal advice, and reading it does not create a solicitor-client relationship. Every case turns on its own facts, its own evidence and its own disclosure; past results do not guarantee, promise or predict the outcome of any other matter. No result is ever guaranteed. The case style “R. v. M.T.” is fictionalized, and all names, initials, dates, locations, court file information and other identifying details have been changed or omitted. Anyone facing a criminal or Cannabis Act charge should obtain advice from a lawyer about their own situation.
Areas served
Shen’s Law Professional Corporation represents people charged with criminal and drug offences across the Greater Toronto Area — Toronto, Markham, Richmond Hill, Vaughan, Scarborough, North York, Mississauga and Brampton — and throughout York Region, Peel Region, Durham Region and Halton Region; Simcoe County, including Barrie, Bradford, Innisfil and Gilford; and Peterborough County and the Kawarthas, including Peterborough, Lakefield, Bridgenorth and Kawartha Lakes.
Contact
Jake Shen — Criminal Defence Lawyer
Shen’s Law Professional Corporation
Telephone: (647) 390-1131
Website: www.11D.ca
Email: jake.shen@11d.ca
Offices in Markham, Toronto and Gilford. Services available in English and Mandarin. Free initial consultation.