Pubdate: Tue, 26 Jul 2005 Source: Vancouver Sun (CN BC) Copyright: 2005 The Vancouver Sun Contact: http://www.canada.com/vancouver/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Ian Mulgrew Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada) Bookmark: http://www.mapinc.org/find?196 (Emery, Marc) B.C. COURT GOES EASY ON POT GROWER Two-Year Jail Sentence Struck Down On Appeal For B.C. Man Caught Growing Dope In Sask. The B.C. Court of Appeal has turned a deaf ear to demands for stiffer sentences for pot producers and traffickers and in a split decision all but invited growers to move here if they want judicial leniency. In a ruling that highlights the legal inequities of the federal marijuana prohibition, the highest court in the province has struck down a two-year prison sentence that was part of a plea bargain with a man caught growing dope in Saskatchewan. The court said that punishment was too harsh by B.C. standards and, since the man had moved back here, he deserved our kinder justice, not the tough stick wielded by Prairie prosecutors. The decision came down as U.S. and Canadian law enforcement agencies trumpeted the discovery of a sophisticated cross-border tunnel built in the Fraser Valley and Solicitor-General John Les rejoiced that U.S. authorities could punish the smugglers with lengthy prison terms. In his opinion, Canadian penalties for people who produce or deal in cannabis have become "a joke." "I'm a great advocate of putting these people away for a considerable amount of time so that they're unable to visit their nefarious effect on our communities," he told reporters. Thankfully, the B.C. Appeal Court doesn't see the world through the same flawed prism. Consider the reasoning in this case. Matthew William Shaw, a 38-year-old mechanic, was charged in Saskatchewan after police found a three-room marijuana growing operation in his rented, rural home -- putatively generating about $100,000 worth of pot per harvest. As the case moved through the court system, the B.C.-reared Shaw moved his family to Sooke. In the end, he agreed to a plea bargain that stipulated two years' imprisonment -- about the average sentence for pot growers in straitlaced Saskatchewan, a province all but created by the temperance movement. His wife, also charged, was given an 18-month conditional sentence and, as a result of the deal, the Crown agreed to move the proceedings to British Columbia for disposition. At the sentencing hearing, though, Shaw's lawyer urged the judge to reduce the agreed-to sentence because it was harsh by B.C. standards. Judges, of course, are not required to accept a plea bargain, but unless there is a good reason they seldom depart substantially from such joint recommendations. In this case, the judge examined comparable Saskatchewan cases and concluded "there simply is not any reason why I would not adopt" the plea bargain. Writing the majority decision supported by Justice Richard Low, Justice Ian Donald disagreed and said the arrangement should have been overturned. In his dissent, however, Justice Kenneth Smith thought his brothers were treading on dangerous ground and the appeal court should "not lightly interfere" in a plea bargain endorsed by a lower court judge. He said the court should defer to the "standards of Saskatchewan." This case highlights the capriciousness of Canada's legal system when it comes to the marijuana prohibition, which is nearly impossible to enforce, enriches organized crime and erodes confidence in the administration of justice. In the vast majority of B.C. cases involving a first-time grower or trafficker, a sentence of more than 12 months' incarceration is rare; most receive a conditional sentence. "By British Columbia standards a sentence of two years incarceration for a moderately sized marihuana grow operation operated by a person with virtually no criminal history is harsh and excessive," Donald pointed out. This case, though, had a wrinkle. It wasn't a B.C. case. It also involved a plea bargain and a waiver of jurisdiction -- Donald was voluntarily stepping into a mudhole. The prosecutor insisted the Crown would not have waived jurisdiction had Shaw not agreed to the terms of the pact. The rationale is plain -- a person who commits a crime in a particular province ought to expect that he or she will be sentenced according to the norms prevailing in that province. Otherwise offenders would forum shop for the most lenient jurisdiction. Still, this court has waded into this kind of mess before. In a similar case involving another Saskatchewan decision, an 18-month plea-bargained prison term for transporting 13.6 kilograms of pot was reduced by the B.C. court to 12 months' incarceration. Compared to their counterparts here, prairie judges treat marijuana offences seriously and last year imprisoned Marc Emery for more than two months for passing a joint. Like so many people caught with a growing operation, Shaw was an average, middle-class dad trying to turn a quick buck. He had a clean record, save a theft conviction more than 15 years ago, and the pre-sentence report indicated he was an otherwise law-abiding, family guy. Indeed, that's why Donald and Low gave him a break -- what's the point of putting someone like this in prison? Although the Crown argued Shaw was manipulating the system, the judges saw a young couple trying to make ends meet who moved to Victoria to care for his ailing father and rescue the dad's second-hand store. "In my view," Donald concluded, "a fit sentence [in this case] would be two years less a day to be served in the community. . . No useful purpose will be served by maintaining a custodial sentence. Because the appellant has already spent three months in custody, the actual sentence is 18 months less a day." I think that was the right call. And I believe it's time the politicians like Les woke up -- the marijuana prohibition is bad law. The unfair way in which it is currently being haphazardly enforced and the scandalous discrepancy between sentences from province to province are compelling arguments the criminal statute should be scrapped and a new regulatory regime introduced. - --- MAP posted-by: Jay Bergstrom