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.