POT SENTENCES NOT BASED ON PUBLIC OUTCRY: JUDGE

Provincial Court Chief Judge Carol Baird Ellan responded Tuesday to
criticism that B.C. judges are too lenient on marijuana growers --
saying the courts are simply enforcing the laws given to them by
Parliament and the rulings of higher courts.

"Judges don't sentence based on public outcry," Baird Ellan said.
"They have to sentence based on relevant cases and the submissions in
court before them."

The Vancouver Sun reported Tuesday that fewer than one in seven people
convicted of growing marijuana in B.C. over the past two years was
sentenced to any time in jail.

Growers were even less likely to face jail in Vancouver -- where fewer
than one in 13 received a jail sentence.

Statistics also show judges in B.C. are less likely to send growers to
jail now than they were in the late 1990s.

Baird Ellan said changes made to the Criminal Code in 1996 -- and
later rulings by the Supreme Court of Canada -- dictate that
imprisonment should be a last resort in sentencing.

Furthermore, Baird Ellan said, rulings dictate that where appropriate,
judges should permit offenders to serve their sentences at home in
what are known as "conditional sentences."

"The first step is to say: Is this a case where imprisonment is
warranted? Then the next step is whether it's a conditional sentence
of imprisonment," said Baird Ellan.

The sentencing statistics, provided to The Sun by B.C.'s court
services department, indicate that in addition to the 13.8 per cent of
growers provincewide who received jail time, another 4.4 per cent of
growers received a conditional sentence.

Conditional sentences were far more popular in Vancouver, where 12.7
per cent of offenders received them -- compared to 7.6 per cent who
received jail time.

Baird Ellan said she couldn't explain why Vancouver judges appear to
be out of line with the rest of the province, but said if they are, it
is up to Crown prosecutors to make that argument in court.

"If Vancouver is out of step with other B.C. communities, the Crown
should be bringing that to the attention of the courts," she said.

She also said that penalties for marijuana growers are unlikely to
change anytime soon because, by law, judges must look at the rulings
of other judges when handing out sentences.

"It's not really up to judges to make dramatic changes in the range of
sentences for particular cases," she said. "Because anytime we've seen
that done . . . it usually results in reversal on appeal."

Any fundamental change in sentencing for marijuana growers would
likely require a change in the law, Baird Ellan said.

In November, the federal Liberals reintroduced a bill that would
decriminalize possession of small amounts of marijuana, and increase
the maximum penalties for commercial marijuana growers to 14 years
from seven.

The new bill also introduces four "aggravating factors" for judges to
consider when sentencing marijuana growers, including:

- - If the growing operation was located on the property of a third
party, such as in a rented house.

- - If the growing operation posed a security, health or safety hazard
to children in the immediate area of the operation.

- - If the operation posed a potential public safety hazard in a
residential area.

- - If the person placed a booby trap in the grow operation that could
cause death or bodily harm to someone.

In those cases where one of the four aggravating factors exist, a
judge would have to sentence the offender to jail -- or provide
specific reasons why they don't think jail is appropriate.

Neither the federal justice minister nor the minister of public safety
was available to comment Tuesday.

But Alex Swann, spokesman for Public Safety Minister Anne McLellan,
said the government is serious about getting tough on marijuana growers.

"The minister is of the view that we do need higher maximum penalties
for cultivation and large-scale cultivation in particular," Swann
said. "She does understand that there is a threat to public safety
[and] that people who pose a serious threat to public safety deserve
serious time."

But Conservative justice critic Vic Toews said Ottawa isn't going far
enough and that increasing the maximum prison sentence for growing
will have little impact because judges rarely give people the maximum
now.

"The answer isn't increasing maximums," Toews said. "It's establishing
minimum penalties so there are significant repercussions for
cultivating and trafficking. If you are serious about getting tough on
trafficking, you have to impose minimum sentences, because the judges
won't do that themselves."