R. v. Carlson Date:, 2015 BCPC 287

Citation: R. v. Carlson Date: 20150608 2015 BCPC 0287 File No: 217443-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. MICHELLE DEANNE CARLSON EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE M. GIARDINI Counsel for the Crown: P. Eccles; H. Pineo Counsel for the Defendant: K. Tousaw Place of Hearing: Vancouver , B.C. Date of Hearing: June 8, 2015

Date of Judgment: June 8, 2015 Introduction [ 1 ] THE COURT: Ms. Carlson has pled guilty to a breach of the Marihuana Medical Access Regulations , namely, that on August 30, 2012, in Burnaby, British Columbia, she unlawfully produced and kept marihuana, in excess of the number of plants authorized by her personal use production licence. I will review the circumstances momentarily. [ 2 ] The plea and the current charge before the court were arrived at as a result of plea arrangements made between defence counsel and the Crown.

The matter originally before the court was an information on which the Crown proceeded by way of indictment, charging Ms. Carlson with unlawfully producing a controlled substance; namely, cannabis marihuana, and unlawfully possessing a controlled substance, namely, cannabis marihuana for the purpose of trafficking. Upon Ms. Carlson entering a plea on the offence under the Marihuana Medical Access Regulations , that information was stayed. [ 3 ] During this sentencing hearing, I heard background information about the offence and the offender, from both the Crown and the defence.

I will briefly review the circumstances that brought Ms. Carlson to the attention of the police. Circumstances of Offence [ 4 ] The police initially received information in late August 2012 that there was a suspected theft of electricity from a home on Gilley Avenue in Burnaby, British Columbia. There is no dispute that Ms. Carlson was found at that home when the police attended to investigate. The police obtained a warrant to search the property, and executed that warrant on August 30, 2012. When they attended at that property they found a "grow op" in the basement.

There were four grow rooms, one of which was not being used. The police found a total of 490 marihuana plants. Photographs of the grow op were introduced into evidence at the sentencing hearing. By looking at those photographs, one can tell it was a very healthy marihuana crop. The photographs show there were fairly healthy looking marihuana plants about two to three feet tall. [ 5 ] Ms. Carlson's licence allowed her to produce approximately 122 plants. Based on support from her doctor, she had applied for a larger amount of 490 plants.

However, that application had not been processed at the time the police executed the search warrant. [ 6 ] The police found there had been a bypass of the electrical meter, a bypass that appeared to have been poorly done, and it was in quite a dangerous condition. There were three rooms operating. There were substantial amounts of grow operation equipment and materials, including fans, ballasts, light bulbs, air conditioners, dehumidifiers, various products for growing the plants, and so forth. [ 7 ] Ms. Carlson was in the residence at the time. She was cooperative with the police.

She attended with the police to the Burnaby RCMP detachment. She was released later that day on a promise to appear. She has been bound by that promise to appear until the present day. [ 8 ] The parties, quite appropriately, did not delve into the negotiations that led to the guilty plea today. I am aware that there were and there are constitutional challenges to the Marihuana Medical Access Regulations . One of the reasons there has been some delay in dealing with this matter is because another case, that would have provided assistance to the parties and the court, has been winding its way through the courts.

It is expected that the Supreme Court of Canada will be issuing a decision very shortly. [ 9 ] More importantly, however, the whole scheme that was in place at the time Ms. Carlson was charged has been substantially changed. The previous Marihuana Medical Access Regulations are no longer in place. There may be other regulations that will come to pass, but the whole system of individuals growing their own marihuana for medical purposes has been reviewed and substantially altered.

Position of the Parties [ 10 ] The Crown seeks the imposition of a conditional discharge with a six-month probation order with the same conditions as the terms of the bail. Those conditions would be the statutory conditions: keep the peace and be of good behaviour, and attend court if required. Essentially that was all that Ms. Carlson was bound by in the past. [ 11 ] In seeking a conditional discharge, as opposed to the absolute discharge which is sought by the defence, the Crown explained a conditional discharge was appropriate in the circumstances. It submitted Ms.

Carlson had authority to possess and produce marihuana plants up to a certain number. However, she did not comply with the requirements of her licence. In fact, she cheated the system just like someone who cheats on their income tax. It was not argued in quite those terms, but that was the implication. The Crown argued, although that program no longer exists, it is still important for the court to consider general deterrence in imposing a fit sentence. [ 12 ] The defence took the position that, in all of the circumstances, and in particular taking into account Ms.

Carlson's personal circumstances, the appropriate sentence is an absolute discharge. Circumstances of Accused [ 13 ] I turn now to the circumstances of Ms. Carlson. She is 34 years old. She has lived in British Columbia since she was about two years old. She is employed as a special education assistant in the New Westminster School District at the secondary level. At the moment, she is on disability/stress leave. She has been on such leave for two years. [ 14 ] Ms. Carlson's interest in special needs children began quite early in her life because her father operated a camp for young children with special needs.

She was exposed to those children from an early age. Also, if I understand the submissions correctly, there is a family member who has an autistic child, so she has been exposed to special needs children in that way as well.

[15] Her father is no longer alive, but her mother is alive and lives in Surrey. She also has a brother. In fact, at the time of theoffence, it appears Ms. Carlson may have been sharing a home with her brother. Documents identifying him were found at the residencewhere the grow op was discovered. [16] Ms. Carlson has a college diploma from Douglas College. She has no criminal record. [17] Ms. Carlson has had a number of health problems. The primary problem, which led to the use of marihuana for medicalpurposes, is fibromyalgia, which creates severe full-body pain. She also has a TMJ disorder. However, Ms.

Carlson was also involvedin two serious motor vehicle accidents. She was the victim of a drunk driver on two separate occasions. As a result of those accidentsshe has chronic pain in the knees, back, ankles, and spine. She also suffers from osteoarthritis. [18] Ms. Carlson is currently using prescription painkillers. She is no longer using cannabis. However, at the time the charges aroseshe had obtained a medical marihuana prescription through her doctor. She was using cannabis, predominantly as an oil and also in whatwere described as "edibles," to ingest by consuming baked products. [19] As I indicated, Ms.

Carlson worked and is still an employee at the New Westminster School District. However, the charges thatbrought her to court became known to the school district. In fact, it appears that a screenshot of the search warrant was distributed at herplace of work. This caused her no end of grief and possibly some repercussions, at least from teachers and fellow colleagues in theschool district. [20] Ms. Carlson recently attempted to obtain a position. She fully disclosed her situation, including the fact she had used medicalmarihuana in the past.

She was told in no uncertain terms, given that situation, that she had no hope of working with young people inBritish Columbia. [21] Additionally, in the past, she travelled regularly, in particular to Birch Bay where her family sometimes camps. She has haddifficulties because of her criminal charges. In fact, at one point she was turned back from the border, and was searched, fingerprinted,and photographed. [22] Although Ms. Carlson is receiving disability benefits at the present time, once she is better, she plans to consider opening acamp for at-risk youth. This plan is still in the concept stage.

The idea is she would work with youth who have emotional andpsychological difficulties, possibly substance-abuse issues. That plan has not materialized as yet. [23] Since the time the charges were laid and to date, she has received spousal support payments, in addition to her disabilitypayments. This is how she has supported herself. She still has her prescription for marihuana, but has not done anything aboutproducing any marihuana, even though an injunction has been granted which preserves the status quo of those individuals who hadmedical marihuana licences to grow marihuana. Because Ms.

Carlson no longer lives at the Gilley Street address where these eventstook place and because the licence was specific to that address, she is not in a position to legally produce marihuana, even though she hasa licence. The Objectives and Principles of Sentencing [24] The overarching principle of sentencing is that the sentence I impose on Ms.

Carlson must be proportionate to the gravity of theoffence to which she has pled guilty and the degree of responsibility in that offence. [25] The Criminal Code sets out specific objectives of sentencing which are: general and specific deterrence, denunciation,rehabilitation, reparation to society and victim, if there is one, separation from society where necessary and the need to promote a senseof responsibility in offenders and acknowledgment of the harm done to victims and the community. [26] The case law makes it clear, as does the Criminal Code, that sentencing is a highly individualized process.

My responsibility isto sentence Ms. Carlson for the offence to which she pled guilty. In imposing a sentence and in determining a fit sentence, I mustconsider her particular circumstances, the circumstances of the offence, and any aggravating or mitigating factors relating to either herpersonal circumstances or the circumstances of the offence. [27] In this case there is no dispute between the Crown and the defence that a discharge is appropriate in the circumstances. Theonly question is whether a conditional discharge or an absolute discharge should be imposed. [28]

Section 730 of the Criminal Code provides that discharges are available for any offence, unless there is a minimum sentence ora maximum sentence of 14 years or more. [29] In R. v. Fallofield, (1973), (BC CA), 13 C.C.C. (2d) 450 (B.C.C.A.), the court said that, in consideringwhether a discharge should be imposed, the sentencing judge should consider two conditions: (

a) whether a discharge is in the offender'sbest interest, and (

b) whether a discharge is not contrary to the public interest. [30] In Fallofield, the court noted that the first condition, the offender's best interest, presupposes the offender is a person of goodcharacter without previous convictions (which is so in Ms. Carlson's case), that it is not necessary to enter a conviction to deter theoffender from committing future offences or to rehabilitate her; and that entering a conviction may have a significant adverserepercussion on the offender. [31] The second condition, as already noted, is that imposing a discharge is not contrary to the public interest.

In Fallofield, thecourt said, in the context of that condition, public interest in deterrence of others must be given due weight, but does not preclude thejudicious use of the discharge provisions. [32] In R. v. Lavallee, [2011] N.J. No. 54, Judge Gorman of the Newfoundland and Labrador Provincial Court, set out factors thatshould be considered in deciding whether or not to grant a discharge. Those factors, include, but are not limited to:

- the nature of the offence committed; - the background of the offender; - the need for specific and general deterrence; - the requirement for the sentencing principle of denunciation to be applied; and - the impact upon the specific offender of a conviction being entered. [ 33 ] In this case, it is obviously in Ms. Carlson's best interest that a discharge be entered. [ 34 ] The next question to address is whether a discharge is appropriate when considering the public interest. In Ms. Carlson's case, I have considered the fact she has no prior criminal conviction.

I have also considered the fact she pled guilty and accepted responsibility for an offence under the Marihuana Medical Access Regulations . [ 35 ] I have considered this was part of a plea deal, when I use that term, I do not use it in a derogatory sense. As judges we are aware of the fact plea deals are made and that they are made for any number of reasons. [ 36 ] I have also considered, in addressing the public interest, the fact that the program, under which Ms.

Carlson held her licence and under which was in place when the offence occurred, no longer exists in that form. [ 37 ] I have considered the fact she has experienced considerable repercussions for her offence, and I suspect some embarrassment and shame. I was not told that in so many words, but I do not need to be told. I imagine it was difficult for Ms. Carlson to have her colleagues become aware of the charges. As a special assistant in a secondary school, one's reputation, both at work and off work, is often a significant factor. I believe I can take judicial notice of that.

I am certain the revelation of the charges and the manner in which they were revealed, including the screenshot of the search warrant, caused Ms. Carlson considerable embarrassment. However, more than embarrassment, it has also affected how she is viewed by at least some of her colleagues. [ 38 ] There is no question that the charges and the guilty plea, even if a discharge is granted, be it absolute or conditional, will continue to haunt her.

In this day and age of the Internet and news which is constantly and routinely accessible, including access to court records, it takes only a few clicks for anyone in the community to find out what happened, what she was charged with, what sentence was imposed. It is not realistic to expect that what happened, the charges against Ms. Carlson and her guilty plea will be buried away in a dark corner, at least not in the near future. [ 39 ] I have taken into account Ms. Carlson's physical/health issues. [ 40 ] I have taken into account the fact that she was cheating the system. Mr. Eccles' comparison of Ms.

Carlson to someone who cheats on his/her income tax was appropriate. [ 41 ] At the end of the day, however, I have to go back to the basic concept that sentencing is a very individualized process. In my view, the difference between the Crown's position and the defence position is that, if I accept the defence position, Ms. Carlson walks out of court today and as far as the courts are concerned, the matter is essentially over. It does not mean there will not be a record of it, unless Ms. Carlson at some later point seeks a pardon to totally expunge the record.

If I do not grant her an absolute discharge, it means she will have to wait six months. The conditions she will have to abide by will be no different than the conditions any citizen has to abide by; that is, to keep the peace and be of good behaviour. [ 42 ] In my view, the situation I am dealing with today involving Ms. Carlson is a relatively rare confluence of events. The whole scheme that led to her having a licence and that led to the charges, is no longer in effect.

She has been under a cloud and has been subject to conditions, albeit relatively lenient conditions, since August 2012, that is almost three years. [ 43 ] Ms. Carlson has had to come to court on a number of occasions. She has had to live with the uncertainty of not knowing what was going to happen. She has had and will likely continue to have some work-related repercussions.

Whether they are going to be serious repercussions or not, none of us can say. [ 44 ] In considering the public interest in deciding to grant an absolute discharge versus a conditional discharge, I have to consider what a reasonable, fair-minded member of society thinks would be appropriate in the circumstances. In my view, given the unusual circumstances of this case, I am satisfied that justice will be served and that the public interest will be served by granting an absolute discharge. [ 45 ] Those are my reasons. [DISCUSSION ABOUT VICTIM FINE SURCHARGE AND WHETHER APPLICABLE OMITTED]

(REASONS CONCLUDED)