The Appeal Court of B.C. has affirmed a lower court judge’s conclusion that the minimum punishment of two years in prison under the Controlled Drugs and Substances Act for possession of marijuana for the purpose of trafficking is “cruel and unusual punishment.”
Justice Sunni Stromberg-Stein dismissed on Dec. 28 in Vancouver the Crown’s appeal of a 10-month sentence imposed after Phillip Francis McGee pleaded guilty to possessing marijuana for the purpose of trafficking and production of marijuana in the Surrey home he was renting.
The grow operation contained 601 plants. Under the CDSA, everyone who has a pot grow-op of more than 500 plants is guilty of an indictable offence and subject to a minimum sentence of two years, increasing to three years in cases where property belonging to a third party is used.
The sentencing judge decided that section of the CDSA violates the Canadian Charter of Rights and Freedoms concerning the right not to be subjected to cruel and unsual treatment or punishment.
The court heard that on Jan. 31, 2013 the RCMP raid a house McGee and his wife had been renting in Surrey since 1992 and found the grow operation in its crawl space, with access through a trap door in a closet on the main floor of the one-level home. The hydro meter was bypassed, ventilation ducts were set up, and three bags containing 515 grams of marijuana were found in the living room and bedroom.
Stromberg-Stein said in her reasons for judgment that the grow-op was “of average sophistication” and cost about $30,000 to set up. “The trial judge accepted an assessment by a police expert witness that there there had been at least two previous crops,” she noted. “Each crop was conservatively valued at $93,900.
“The home was rendered uninhabitable as a result of the grow operation,” the appeal court judge observed. “The owners had to pay $8,000 to the City of Surrey for the costs of investigating and dismantling the grow operation and had to sell the property at below market value because they could not afford the $30,000 required to make it habitable again.”
McGee was 60 years old when he was sentenced and had no criminal record. The court heard McGee received about $20,000 per crop. Stromberg-Stein noted he had no addiction issues, had “strong support from family and friends” and became involved in the pot growing business to replace lost income after suffering a shoulder injury, at his fencing job of 17 years, that rendered him unable to work. He took care of the plants after others set up the grow operation, the court heard.
“He admitted being a principal of the grow operation but denied being the mastermind,” the judge noted. She added that McGee “had no connection to organized crime.”
Stromberg-Stein noted McGee has completed his 10-month sentence, which she found to be “at the very low end in the range suggested in the case authorities.
“At the very minimum a 12-to-15 months sentenced should have been imposed in the circumstances of this case,” the appeal court judge determined. The rental house was rendered uninhabitable and McGee “has made no restitution to the innocent property owners,” she added.
“These are aggravating factors which, in my view, the sentencing judge acknowledged, but failed to give sufficient weight. However, as I have noted, the Crown has not argued the sentence is unfit beyond that the mandatory minimum should have been imposed.”
Appeal Court Justices Mary Saunders and Lauri Ann Fenlon concurred.