A FINE CAN BE FINE FOR THE CRIME

On Jan. 19, the B.C. Court of Appeal overturned a sentence imposed in
a marijuana grow-op case.

A provincial court judge had found that a $20,000 fine would best
address the root of the offence: the prospect of huge profits in a
black market. The Court of Appeal thought differently and sentenced
the accused to a year in jail.

The three-judge panel concluded that the fine did not properly meet
two principles of sentencing: denunciation of the unlawful conduct and
deterrence of others.

Although courts continue to repeat incantations like "denunciation"
and "deterrence" as if they're conducting an exorcism, where drugs are
concerned - especially marijuana - it is not so easy to be delivered
from evil.

The reason for the losing struggle is the erosion of broad support for
the law itself, something absolutely essential for the meaningful
application of those principles. It's pretty hard to denounce conduct
that the public has long treated with a wink and a nudge.

Our criminal law - the reflection of our collective values - has often
found itself facing that problem. The first Criminal Code was enacted
in 1892 and most would cringe today at some of its prohibitions:
homosexuality, of course, but also contraception, gambling and
homelessness. In short, it sought to establish criminal sanctions for
conduct that was perceived to be detrimental to the moral fibre of
society. What it overlooked was the inherent immorality of
criminalizing conduct that was harmless to others.

As recently as 1967 (to those my age, that's recent), the Supreme
Court of Canada upheld a sentence of indefinite imprisonment for
Everett Klippert, a 40-year old man found to be a "dangerous sexual
offender." His dangerous sexual conduct? Consensual sex with other
adult males, then known as "gross indecency." His sentence played an
important part in Pierre Trudeau's famous declaration that the state
has no place in the bedrooms of the nation. To be fair, that law was
scrapped in 1969 less because of a broad shift in public attitude than
because of the determination of a government to do away with something
manifestly unjust. But there is no doubt that public attitudes were
changing rapidly.

That same criminal law amendment bill in 1969 legalized contraception,
the government again recognizing that the law was being honoured far
more in its breach - more than 50 million contraceptives were being
purchased annually across the country, at clinics and under the
counter at drugstores.

Shortly after, the vagrancy laws, long-standing tools in the
regulation of the unsightliness of poverty and prostitution, were also
gutted, the government finally acknowledging that they were
fundamentally an excuse to conduct an arbitrary exercise in social
Darwinism.

Meanwhile, gambling has become a national pastime and a significant
source of public revenue.

As with drugs today, there was a time when courts sincerely tried to
"denounce" such conduct and to deter people from engaging in it. But
at the trial level, judges mostly tried to temper their effect,
finding ways to do their duty without too much denunciation.

Not unlike the Klippert case, a 1967 judgement of the B.C. Court of
Appeal (R. v. Adelman), said that it was "vital to the community as a
whole that the use of marijuana be stamped out" and that "the
widespread disregard of the law prohibiting . . . marijuana must be
stopped and it is the duty of the courts to do all they can to assist
in stopping it." It overruled a suspended sentence imposed at trial
and substituted six months in jail for a university student with no
previous record who was caught with a small amount of pot.

It took about a year for lower courts to find ways to impose less
draconian punishment. Which is precisely what is going on in almost
all courtrooms today on those rare occasions that a simple possession
of pot case shows up.

The drug was a centrepiece of the cultural upheaval of the '60s. The
ubiquity of the weed was such that as time went on, much of the themes
and lyrics of popular music were devoted to it. Jimmy Buffet sang
wistfully of his '50s childhood when "Only jazz musicians/ Were
smokin' marijuana." Cheech and Chong, those perpetually stoned
pranksters, were a huge draw. Paraphernalia shops sprang up
everywhere. NORML (National Organization for the Reform of Marijuana
Laws) came into being. The B.C. and Canadian Marijuana parties sprang
up. Some of that might once have appeared to be on (or beyond) the
fringe, but not anymore.

The use of this widely sought-after substance has grown exponentially,
in spite of every attempt to stamp it out. That is neither a good nor
a bad thing, simply a fact of modern society. Just as bathtub gin
could readily be had during alcohol prohibition, pot will remain
freely available. And it makes no sense to differentiate between users
and producers. The stork won't bring users what they want, nor will
they find it under cabbage leaves. It is useless - and sometimes
embarrassing - for appellate courts to try to "denounce" and "deter"
conduct that has become so mainstream.

The demand for marijuana is as enormous as the profits to be made in
its production and distribution. Until the federal government comes to
its senses and does away with the law, someone will always be ready to
take the risk.

Which is precisely where the courts can and should hang their hats
when looking for something to denounce. The conduct that is
reprehensible is the reaping of those profits in a black market while
other, law-abiding people earn their way with a lot more work and a
lot less return. And it would seem that a large financial penalty
would be a reasonable way to go about it. We pay large amounts for
grow-op investigations and the trials that result from them. Why pay
again for jail time or even community supervision? Let the profiteers
put money back in the pot - so to speak.