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Put Pot Growers Behind Bars, Court of Appeal tells Judges
By Hempology | March 5, 2007
Editors Note: Mike is and has been a strong supporter of the med movement and on behalf of all of us at Hempology and “The Club” we wish much peace on this warrior and our hopes that time passes quikly. Seeya in the fall!
Ian Mulgrew
Vancouver Sun
The B.C. Court of Appeal has told lower court judges that pot growers should be jailed to buttress the anti-marijuana law. In a significant unanimous ruling that tries to address vexing questions raised by judges dealing with pot offenders, a three-judge panel unanimously ordered a 12-month jail term for a Courtenay man with no criminal record who was caught growing dope for profit.Writing with the support of her colleagues Mary Newbury and Risa Levine, Justice Catherine Ryan said the $20,000 fine Michael Van Santvoord received was too lenient because of the need to deter others from growing.
That’s why a conditional sentence would have been inappropriate as well, Ryan emphasized.
Provincial Court Judge Brian Saunderson last August fined 41-year-old Van Santvoord $20,000 after he pleaded guilty to operating a sophisticated commercial operation.
Justice Ryan said that wasn’t punishment enough — jail time was necessary.
“What is communicated [by the original decision] is a frustration with the efficacy of laws that are not universally embraced by Canadian citizens,” Ryan wrote. “Whatever a judge’s private views, his or her duty requires that judge to enforce the laws that Parliament has lawfully enacted . . . . Indeed, there can be no question that the law at issue in this case is a legitimate expression of Parliament.”
Police in B.C. describe the rise in illicit marijuana production as an “epidemic” and say tens of thousands of people have turned to growing pot as a mortgage helper and income supplement.
The appeal court reviewed some 20 cases involving first offenders similar to Van Santvoord, a former tree-planter reared by hippies, in which the maximum sentence was 18 months imprisonment.
“Mr. Van Santvoord’s crime is a flagrant violation of the law,” Justice Ryan said. “I would, therefore … impose a sentence of 12 months.”
In December 2004, police caught Van Santvoord at a road stop with a little less than two kilograms of marijuana. Later, they seized hundreds of plants, clones, dried product, financial records, a business plan, money and equipment at two homes in the Comox valley.
They also seized a how-to video Van Santvoord was making that boasts of his horticultural expertise and prowess at producing pot.
His business plan projected a net profit of $158,905 a year.
As far as the cops were concerned, the potential profit was two or more times that.
Entitled “Dare to Dream,” Van Santvoord’s accounting sheets included the costs of a new truck, computer, TV, DVD and stereo, wardrobe, dental work, and mutual funds.
The Crown argued that a year or two in jail was appropriate; Van Santvoord wanted the Court of Appeal to reduce what he considered too stiff a fine.
His lawyer suggested a conditional sentence served in the community of between 12 to 18 months.
In his original decision, Judge Saunderson discussed at length the difficulties of sentencing otherwise law-abiding citizens to jail because they were cultivating marijuana.
A few weeks before Saunderson sentenced Van Santvoord, a B.C. Supreme Court judge gave two other men from Courtenay two years less a day in jail for an identical crime.
“The plethora of charges related to grow-ops provides support for the proposition that the present range of sentences, particularly in respect of grow-ops of considerable size, does not promote the principle of general deterrence,” Justice Ian Pitfield said in sending them to the lockup.
“Unless other means of reducing illegal production specifically and generally can be found, custodial sentences … will likely provide the only realistic means of constraining illegal activity of this kind, and the penitentiary terms … may be preferred.”
He labelled growers “a danger to the public,” while Saunderson said pot-growing seemed to him to be a victimless crime committed by ordinary people usually in a financial squeeze.
Regardless of where you stand, Saunderson noted that B.C. has reputedly the highest per-capita use of illegal drugs in Canada and the lowest penalties for breach of the drug laws.
His ruling brought to the fore the serious concerns of judges.
Criminal laws should not be capriciously enforced, nor should the penalties for breaking such laws be so varied that one person is given a stiff prison term and another from the same community handed a fine for a similar-fact offence. That is not only unfair, but also erodes confidence in the judiciary and the rule of law.
With this ruling, the appeal court weighed in on that judicial debate and came down on Pitfield’s side.
“In my view, the facts of this case and the circumstances of the offender warranted a sentence designed to deter and denounce the conduct,” Ryan wrote.
“A fine, even one that reduces the profit motive, does not, in this case, properly address those sentencing objects.”
Like it or not, this ruling says, that’s the law and if you don’t obey it, you’ll go to jail.
Topics: Articles, CD-13th, Spring 2007 | Comments Off
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