PUT POT GROWERS BEHIND BARS, COURT OF APPEAL TELLS JUDGES

Deterrence Is A Valid Objective, Regardless Of Judges' Private Views
On Drugs, Ruling States

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.