INCONSISTENT SENTENCES FOR POT-GROWING OFFENCES UNFAIR

Some B.C. Judges Impose Jail Terms, While Others Hand Down Fines

B.C. judges are in a quandary about what to do about the marijuana
laws and are debating each other in rulings by imposing jail terms on
some offenders while handing others only a stiff fine.

In the most recent decision, Provincial Court Judge Brian Saunderson
in Courtenay decided jail in such cases is a dumb idea.

He fined local resident Michael Jude Curtis Van Santvoord $20,000 for
a sophisticated commercial dope-growing operation.

This stands in stark contrast to B.C. Supreme Court Judge Ian
Pitfield's ruling a few weeks ago sentencing two men from the same
community to jail for two years less a day for identical crimes.

Pitfield labels marijuana growers "a danger to the public," while
Saunderson says pot-growing is a victimless crime committed by
ordinary people in a financial squeeze.

While one says penitentiary terms may be needed to reduce illegal
production, the other quotes a handful of other judges who believe
the law is an ass and should be changed.

Regardless of where you stand, the result Saunderson noted is 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.

No wonder the public is confused.

The 41-year-old Santvoord was caught growing marijuana in December
1994 at two locations in Courtenay and nearby Buckley Bay.

Police seized 860 marijuana clones, 549 marijuana plants, 14.5
kilograms of fresh buds drying in trays, and 3.4 kilograms of dried
product separately bagged in half-pound quantities.

The Crown sought to establish the perniciousness of this activity by
entering as evidence a police report entitled Marihuana (the archaic
legal spelling) Production Impact Statement, Comox Valley, 2006.

The flavour of the Reefer Madness-style paper emerges from its
captions -- Organized Crime and Marihuana Grow Operations; use of
weapons and booby traps; danger to police, firefighters, children and
members of the public.

Saunderson was more than skeptical. He criticized the cops for
characterizing cannabis as a "moral issue."

"It is a legal issue, not a moral one," he said in a ruling I think
every judge should consider. "Morality is concerned with the goodness
or badness of human character or behaviour or with the distinction
between right and wrong."

The criminal prohibition against cannabis has nothing to do with
that, Saunderson said, and he went on to enter into the court record
his own research on the views of U.S. and Canadian judges.

He suggested his bench colleagues read a book by Judge James P. Gray
of the Superior Court in Orange County, Calif., entitled Why Our Drug
Laws Have Failed and What We Can Do About It: A Judicial Indictment
of the War on Drugs.

Saunderson approvingly quoted several passages:

"Over the past several decades our government has attempted to combat
the critical problem of drug use and abuse with a program of massive
prisons, demonization of drug users, and prohibition of debate about
our options... But decades of failed attempts to make this policy
work have shown that we cannot effectively take a medical problem and
treat it as a character issue."

He also quoted from an open letter written by a group of U.S. judges,
appellate justices and lawyers:

"As Congress and state legislatures enact more punitive and costly
drug control measures, we conclude with alarm that the war on drugs
now causes more harm than the drug abuse itself. Accordingly, we join
with our colleagues in calling on our profession, elected officials,
media and the public to initiate a truly open and honest evaluation
of the efficacy and consequences of our drug control laws."

Saunderson then went on to cite B.C. judges who obviously feel the
same way, including B.C. Appeal Court Justice Mary Southin, who wrote
a few years ago in an oft-quoted decision:

"While at one time I accepted the received wisdom that marihuana
offences were serious crimes, I now am of a different opinion, having
been persuaded to the contrary."I have not yet abandoned my
conviction that Parliament has a constitutional right to be
hoodwinked, as it was in the 1920s and 1930s by the propaganda
against marihuana, and to remain hoodwinked. In my years on the bench
I have sat on over 40 cases which had something to do with this
substance, which appears to be of no greater danger to society than alcohol."

Saunderson concluded by adopting the perspective of retired
provincial court judge Jerry Paradis, a staunch proponent for drug
policy reform.

Paradis reasoned that judges should deal with the conundrum posed by
the cannabis prohibition by imposing financial penalties rather than
imprisonment in growing operation cases because they were economic crimes.

"Just as in the case of prohibition against alcohol, the criminal law
against marijuana is overwhelmed by the law of supply and demand and
the capitalist quest for profit," he wrote three years ago.

"There seems to be a lack of logic in the existing equation: these
crimes are committed for purely economic reasons, in the hope of
reaping substantial profits; law enforcement agencies spend
substantial sums in persistent efforts to detect them; equally
substantial sums are spent on the prosecution of those who are
caught; and the offenders are then either sent to a prison, or
supervised in the community, which again requires significant taxpayer expense.

"Far better, in my opinion, that they should be required to pay into
government coffers money that may defray the costs of their own
apprehension and prosecution, as well as perhaps contribute to the
expense of the detection and prosecution of others in the future.

"That payment, if substantial enough, serves to promote respect for
the law by denouncing illegal conduct."

With those thoughts in mind, Saunderson dismissed the prosecution
request for a 12-month jail sentence and substituted the fine.

But I think the bottom line is this situation must be changed.
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.