Judge defends pot sentences
By: Frank Peebles, Prince George Citizen (CN BC), 03-29-05


Sending those guilty of growing marijuana to jail is not as simple as sending a hockey player to the penalty box. Administrative judge Michael Brecknell sat down with the Citizen this past week to answer concerns that local courts were being too lenient compared to others in B.C., on grow-op proprietors.

"Even if we did match the provincial average, it would only be a matter two or three people a year, considering that we have administered conditional sentences and that is, in very real terms, incarceration," Brecknell said. "We (fellow judges) did a rough poll amongst ourselves on this issue and we can't recall when we've been asked for a sentence of real jail."

That request would come from the federal Crown prosecutor that handles the bulk of drug charges like production of a controlled substance and the closely related charge of possession for the purpose of trafficking. Brecknell says those who do studies (referring to those like professor Darryl Plecas, whose recent report on B.C. grow-ops revealed no one found guilty in Prince George of either crime had done real jail time between 2001 and '03) should also do a comparison on the rate of appeals for those convicted of these crimes. If the defence feels a sentence is unfair, that can be appealed and the whole sentence overturned. Very few judgments from this court are taken to appeal for those crimes, and I can only think of one such case of my own, ever, that was overturned on appeal."

Brecknell explained that when someone is charged with impaired driving, a police officer has the opportunity to observe the driver's actions on the road, there are a series of tests that can suggest impairment then other tests that can clinically confirm it. Production of marijuana is, contrary to the thinking of many, a highly complex crime to prove.

First, the RCMP have a challenge in that they have to detect a grow-op (often called in to Crime Stoppers by rival drug growers). Then they have to do a battery of peripheral tests on the allegations to give them the evidence they need for a search warrant that will stand up in court. Next, they have to execute that search warrant in such a way that none of the suspects' charter rights are violated, which can be as simple as not knocking loud enough or waiting a reasonable duration before breaking the door down (while the suspect may well be flushing evidence down the toilet). Next, the RCMP have to search the premises and seize evidence according to protocols instilled in law.

Once the police have a case against a suspect, they turn that over to the Crown prosecutor (for local drug offences that is usually Carolyn Lawlor) who must ensure the allegations meet certain legal standards. Then the work begins to prove in open court each and every point in the list of allegations. If even one point fails, the case can be thrown out.

Next, says Brecknell, comes the issue of plea bargaining. If a little fish is willing to give evidence against a bigger fish, the incentive they usually accept is a lesser penalty for their part in the crime. There is also the difficulty of pinning a clandestine grow-op to a specific person if a series of rental and subletting arrangements are made on a suspect property. If the Crown has a so-so case they will often accept a guilty plea towards a lesser penalty for the assurance of convicting the suspect at least for something.

Other considerations in sentencing include the amount of illegal substance on the site, was it the suspect's first offence or first related offence?, was the suspect stealing electricity as well?, were there booby traps set to harm anyone who entered?, were there weapons on the property?, was it a fire hazard?, was it in a residential neighbourhood versus a remote location?, were there children on the grow-op property? and a number of other aggravating circumstances.

Brecknell points out that the maximum sentences allowed by the criminal code are, by law, reserved for the absolute worst possible scenarios and cannot be applied just to send a message. Also, jail may not be the most appropriate form of punishment depending on the suspect. If one is the sole bread-winner for five children, a conditional sentence locking the perpetrator up at home except to go to work and earn a living is better for society. Also, someone sentenced to jail has the option of early parole or statutory release, whereas a conditional sentence served in the home has to be endured to its absolute end. The home sentence is also better, the judge says, in cases where the suspect needs to feel the hand of punishment but not exposure to even more unsavoury characters inside the prison system.

Another binding consideration is the decisions handed down by other courts for similar cases - they must closely match or an appeal is highly likely.

The evolving mood of the public (and hence elected lawmakers) also plays a role. Brecknell says, "Look, if the police bust in on a reported grow-op and it is Granny Smith with six plants and she's suffering from glaucoma, is it really in the public interest to press charges? And if you do press charges, what will it do to the public's view of the court if that story ends up on the front page of the Citizen - knowing the current parliamentary climate? Maybe the answer is yes, but that is something everyone involved has to carefully consider."

One of the biggest, yet most necessary challenges to overcome, Brecknell explains, is the burden of proof beyond a reasonable doubt.

"There are so many considerations for the police, the Crown, the judges, the legislators, everyone involved at every stage in prosecuting these crimes," Brecknell said. "The defence only has one consideration: what is best for my client. That is as it should be."

© 2005 H.U.M.A.N.: Hemp Users Medical Access Network - Toronto Medical Marijuana