R. v. Chen Date:, 2011 BCPC 297

Citation: R. v. Chen Date: 20111017 2011 BCPC 0297 File No: 30463 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONGZHU CHEN also known as RUOYU CHEN REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: K. Guest Counsel for the Defendant: S. Sugarman Place of Hearing: Williams Lake , B.C. Date of Hearing: October 6 th , 2011 Date of Judgment: October 17 th , 2011 [ 1 ] On May 11 th , 2011, I convicted Mr.

Rongzhu Chen of Production of Marihuana and Possession of Marihuana for the Purpose of Trafficking, contrary to ss. 7(1) and 5(2) of the Controlled Drugs and Substances Act (“CDSA”). I must now sentence Mr. Chen for these offences. [ 2 ] I have decided that I must sentence Mr. Chen to jail. I have decided that a conditional sentence is not appropriate. The sentence on count 1, production, will be 1 year in jail followed by 1 year of probation.

The sentence on count 2, possession for the purpose of trafficking, will be 1 year in jail followed by 1 year of probation to be served concurrently with the sentence on count # 1. I will now explain my reasons beginning with a short review of the facts. Facts [ 3 ] On March 25 th , 2009 the police entered a house on Country Club Boulevard in Williams Lake pursuant to a Search Warrant. Mr. Chen was the only person present. The house had been more or less completely turned over to the production of marihuana. A total of 1,139 plants were located in several stages of growth.

The expert’s report ( Exhibit 14 at trial) estimates these were capable of producing 142 lbs of marihuana which, valued at the pound or wholesale level, would be worth $284,750. This operation had the potential to produce 3 or 4 crops a year for an annual gross income of $854,250.00. [ 4 ] Mr. Chen did not own the house. Considerable damage had been done to the house in the course of setting up and running the grow operation – for example it was very humid, smelled strongly of marihuana and mould was forming on the walls in some areas. The wiring had also been altered at the point where it entered the house.

Whoever did own the house has not put themselves forward to claim restitution. In fact, according to the evidence of Kai Suan Chen, the owner of the house was a directing mind behind this grow

operation. Therefore, I will proceed on the basis that the owner of this house was not victimized by the activities of Mr. Chen. [ 5 ] As I said, there was evidence that the wiring entering the house had been altered and this is visible in photographs 24 to 29 ( Exhibit 2 at trial). The Crown did not produce a witness with the necessary qualifications to say whether this was or was not an electrical bypass and a charge of theft of electricity ( s. 326(1) (

a) of the Criminal Code ) was dismissed at trial. The Crown argues that, despite this, I can still take into account on sentencing the fact that B.C. Hydro is owed some $19,000 for electricity stolen at this location. I agree with counsel for Mr. Chen that I cannot take this into account because Mr. Chen has been acquitted of the theft count. [ 6 ] Moving now to the personal circumstances of Mr. Chen – counsel advises that Mr. Chen’s date of birth was October 18 th , 1971, so he will be turning 40 the day after I sentence him. He is the youngest of two siblings.

He grew up in China and attended university there, graduating in 1993. He worked in import/export for 6 years and then for a communications company for another 5 years. He married in 1998 and followed his wife to Canada in 2005. She is an engineer. Shortly after arriving here they separated. He has a son who is 6 years old. His son lives in China. His mother, who is elderly, also lives in China. [ 7 ] Mr. Chen is not a Canadian citizen. As a result of this conviction, counsel advises, he will likely be deported from Canada. [ 8 ] Mr. Chen knows very little English.

As a result he has found it hard to get work in Canada. He has worked delivering frozen seafood, and also delivering fast food in Burnaby. He has worked on vegetable farms and done renovation and construction work. At the time of this offence in 2009 he had been working seasonally on a vegetable farm. When that job ended he took the position in the marihuana grow op. [ 9 ] Currently, Mr Chen has two jobs. Between 5 and 11 pm on Saturdays, Sundays and Mondays he delivers fast food. Then for the other 4 days of the week he does renovation work with a small company that he set up and licensed in August, 2010.

He has 2 employees. [ 10 ] Mr. Chen travels back and forth from China doing some import/export work and visiting his mother and son. He supports both of them. In his letter, which is filed as part of the package of letters marked Exhibit 1 on sentencing, Mr. Chen writes that his mother is “around 64 years old, a retired worker with a meager pension. They [his mother and son] rely solely on me financially. …[If I were to go to jail] my son and old mother would be out of meal, and my kid would probably be out of school as the tuition are so expensive in China.” [ 11 ] Zhenwu Yue provided a letter on behalf of Mr.

Chen (see Exhibit 1 ). He says that Mr. Chen is a good man, diligent, capable, multi-skilled, friendly and helpful and that he mostly works doing renovations. Zhenwu Yue comments that Mr. Chen may have got involved with the marihuana industry in order to support his son and mother. Tong Wang also speaks well of Mr. Chen saying he is a skilful and responsible contractor and it is a great surprise to find out that he has got involved in a marihuana offence. [ 12 ] Mr. Chen addressed the court during the sentencing hearing.

He said he was very, very sorry for what he had done and that he would never repeat his mistake of getting involved in the marihuana industry. He said “because of this my wife in China left me”. This does not exactly accord with what defence counsel told me, however, I don’t think anything turns on it. He said he has been trying very hard throughout his time in Canada to support his child who is in China. As a result of this conviction, the immigration authorities have aborted his application to sponsor his son to come to Canada.

He would very much like to integrate into Canadian society and to continue to contribute to society. [ 13 ] Mr. Chen has no prior convictions. He has been on bail in the community since the date of this offence – now about 2 ½ years – and has committed no further offences. [ 14 ] I have considered whether Mr. Chen should be sentenced as a principal operator or as a gardener/caretaker. Mr.

Chen was the only person present at this grow operation when the police arrived, he was not very young (he would have been about 37 or 38 years old at the time), and he is clearly a well educated, intelligent, capable man who has the ability, even in a country where he struggles with the language, to set up his own business and employ others. The evidence of Kai Suan Chen, which I did find reliable in some respects, was that the operator of this grow operation received a share in the profits rather than simply a salary. All these things suggest that Mr.

Chen was more in the role of a principal operator than a gardener/caretaker. However, in the absence of a clear acknowledgment of this by Mr. Chen or some clearer evidence from the Crown on the point I have decided that I must sentence Mr. Chen as if he were a gardener/caretaker, rather than a principal operator. The Law [ 15 ] This portion of my reasons is drawn in part from a recent decision I gave in a similar case, R. v. Xuan Wei He, October 12 th , 2011, Williams Lake Registry # 295222-2-C. [ 16 ] The authority to impose a Conditional Sentence of Imprisonment is found in s. 742.1 of the Criminal Code .

There are now five pre-conditions:

(1) The offence must not be a serious personal injury offence as defined in s. 752, a terrorism offence or a criminal organization offence where the maximum jail sentence possible exceeds 10 years;

(2) There must be no minimum sentence prescribed for the offence;

(3) The sentence the court imposes must be less than 2 years in length;

(4) The court must be satisfied that service of the sentence in the community will not endanger the community; and

(5) The court must be satisfied that service of the sentence in the community would be consistent with the fundamental purpose andprinciples of sentencing set out in ss. 718 to 718.2. [17] The first, second and third pre-conditions are satisfied in the case at bar.

The production of marihuana is not a serious personalinjury offence or a terrorism offence and, in this case at least, there is no evidence that it is “a serious offence committed for the benefitof, at the direction of, or in association with, a criminal organization.”[1] There is no minimum sentence for the offence of Production ofMarihuana and I would agree with counsel that the appropriate sentence in this case is less than 2 years in length. [18] The fourth and fifth pre-conditions are more difficult. [19] R. v.

Proulx, 2000 SCC 5 , [2000] 1 SCR 61 (SCC) remains the leading authority on the nature and use of a conditionalsentence. It is helpful to once again review in some detail all that was said in Proulx in arriving at an answer to the difficult questionposed by this case – what is a “just sanction” for a non-addicted, first offender, “caretaker” with the personal characteristics of Mr.

Chen,for the offence of Production of Marihuana? [20] Writing for the Court, Lamer, CJ noted that by creating the conditonal sentence as a sentencing option, Parliament’s purpose wasto reduce the reliance on incarceration as a sanction and increase the reliance on restorative justice: ¶ 127, 1, 16-20. A conditionalsentence should be distinguished from both a probation order on the one hand and incarceration on the other hand. A probation order isprimarily directed at rehabilitation of the offender whereas Parliament intended a conditional sentence to be both punitive andrehabilitative.

For this reason conditional sentences should generally contain “punitive conditions that are restrictive of the offender’sliberty such as house arrest”, community service, abstention from drugs and alcohol, and, where appropriate, compulsory addictionstreatment. It should be the presumption that the offender will be incarcerated if he or she breaches the terms of a conditional sentenceorder: ¶ 127, 21-39.

Although a conditional sentence can be significantly punitive in effect, incarceration will always be morerestrictive of an offender’s liberty because it involves being locked up in a jail rather than staying at home and continuing with life andwork amongst family, friends and associates.

The fact that the consequence for breaching a conditional sentence is incarcerationdemonstrates Parliament’s intention that incarceration will generally be regarded as a more onerous sanction than a conditional sentence: ¶ 40 – 44. [21] As for whether there are some offences for which a conditional sentence will never be available and some for which it willalways be appropriate, Lamer CJ rejected such an approach. “…[N]o offences are excluded from the conditional sentencing regime”providing the other pre-conditions are met, “nor should there be presumptions in favour of or against a conditional sentence for specificoffences.” (¶ 127) These comments were echoed by Madam Justice Ryan in R. v.

Koenders, 2007 BCCA 308, a case involvingmarihuana production. At ¶ 12 she wrote: “These passages [from R. v. Proulx] clearly show that there is no presumption in favour of or against a conditional sentence, includingoffences related to the production of marihuana.” [22] Moving now to Lamer CJ’s discussion of the fourth pre-condition – whether the community will be endangered if the offenderserves his sentence in the community – he says that judges should consider first, whether there is a real risk that the accused will commitfurther offences (of any kind).

If so, incarceration would likely be a better sentencing option than a conditional sentence. If the risk ofre-offending is perceived to be low then the court should consider a second factor – the gravity of the re-offending behavior which couldbe expected from this accused.

For example, if there was only a small risk of the accused re-offending but the offence that might beexpected was extremely grave then the sentencing judge might well decide that this pre-condition was not met and a sentence ofincarceration was required: ¶ 69-76 & 127. [23] In every case where the first four pre-requisites are met the sentencing judge should give serious consideration to choosing thesanction of a conditional sentence: ¶ 127. It would be an “error in principle” not to do so since ss. 718.2(

d) and (

e) require the court toadopt the least restrictive sanctions that “may be appropriate” and to consider “all available sanctions other than imprisonment that arereasonable in the circumstances”: ¶ 90 & 96. [24] The fifth and final pre-condition, or perhaps it is better characterized as an analytic step, required of judges by s. 742.1, is todetermine whether having the offender serve his sentence in the community would be consistent with the fundamental purpose andprinciples of sentencing set out in ss. 718, 718.1 and 718.2. [25] Concerning the objective of denunciation Chief Justice Lamer said the following at ¶ 106: “The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, thenature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the more serious theoffence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there maybe certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which toexpress society's condemnation of the offender's conduct.” [emphasis added] [26] Concerning deterrence he said this at ¶ 107: “Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence.

Judges should be wary,however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer,supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: ACanadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitiveconditions are imposed and the public is made aware of the severity of these sentences.

There is also the possibility of deterrencethrough the use of community service orders, including those in which the offender may be obliged to speak to members of thecommunity about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such acondition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration.

This will depend in parton whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on thecircumstances of the community in which the offences were committed.” [emphasis added]

[27] Concerning the restorative objectives – rehabilitation, reparation and acknowledgment of harm done – contained in s. 718(d), (e)and (

f) he said the following at ¶ 109: “While incarceration may provide for more denunciation and deterrence than a conditional sentence, a conditional sentence is generallybetter suited to achieving the restorative objectives of rehabilitation, reparations, and promotion of a sense of responsibility in theoffender. As this Court held in Gladue, supra, at para. 43, "[r]estorative sentencing goals do not usually correlate with the use of prisonas a sanction". The importance of these goals is not to be underestimated, as they are primarily responsible for lowering the rate ofrecidivism.

Consequently, when the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realisticallybe achieved in the case of a particular offender, a conditional sentence will likely be the appropriate sanction, subject to the denunciationand deterrence considerations outlined above.” [emphasis added] [28] Finally, throughout his reasons in Proulx, Lamer CJ emphasizes that sentencing is an “individualized process”. The principle ofproportionality (s. 718.1) “requires an examination of the circumstances of both the offender and the offence so that ‘the punishment fitsthe crime’”: ¶ 82.

I will address this issue in more detail later in these reasons. [29] I will now review the cases cited by counsel which focus more directly on the issue in Mr. Chen’s case which is the use of theconditional sentence as a sanction for a caretaker/gardener with no record who is convicted of marihuana production. There is greatvariability in the sentences that have been imposed in marihuana production cases. In part, this is a consequence of the “individualized”approach required by ss. 742.1 and 718 to 718.2: Proulx, ¶ 82.

As well, it reflects changing perspectives among the judiciary about theoffence and the inevitable differences in how individual judges assess the purpose and principles of sentencing. [30] Counsel for Mr. Chen cited R. v. Whyte, 2002 BCCA 293, R. v. Cairns, 2004 BCCA 219, R. v. Huynh, 2006 BCPC 582, R. v.Giang, 2010 BCSC 1016, R. v. Howitt, 2010 BCSC 1475. [31] Crown counsel cited R. v. Wallis, 2007 BCCA 377, R. v. Koenders, 2007 BCCA 378, R. v. Anderson, 2007 BCCA 581, R. v. Budd, 2010 BCCA 214, R. v.

Nguyen, March 1st, 2011, Vancouver Registry # 202972-1-T (BCPC). [32] I will review these cases in chronological order. [33] R. v. Whyte, 2002 BCCA 293: Whyte had a grow operation in his house. He was 35 years old and had no criminal record. Attrial a sentence of 1 year in jail was imposed. On appeal this was changed to a conditional sentence of 2 years less 1 day. Southin, JA,with Smith and Low, JJA concurring held that it was important to avoid, if possible, incarcerating first time offenders.

The trial judgealso erred in failing to recognize the deterrent effect of a conditional sentence and the fact that such a sentence can very much restrict anoffender’s liberty. Counsel for Mr.

Chen particularly emphasizes the following comment at ¶ 6: “I do not know whether the learned trial judge considers that the public does not understand the impact of conditional sentences ofimprisonment or that would be growers of marihuana do not understand them, but I think would be growers of marihuana shouldunderstand that a conditional sentence of imprisonment will always contain a very severe restriction on liberty, and therefore should be adeterrent to those who would break the law.” [emphasis added] [34] R. v.

Cairns, 2004 BCCA 219: This is a manslaughter case but is cited for the discussion of sentencing “ranges” found atparagraphs 24 to 32 of Madam Justice Rowles’ decision in that case. She quotes from R. v. M.(C.A.), (SCC), [1996] 1SCR 500 at ¶ 92: “…It has been repeatedly stressed that there is not such thing as a uniform sentence for a particular crime. Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.’ And the following was said at ¶ 42 of R. v.

Bernier, 2003 BCCA 134 at ¶ 42: “A “range” does not preclude on grounds of deterrence or denunciation or the gravity of the particular offence a sentence different fromthat “range”. Nor does a “range” preclude a lesser sentence if some special circumstances warrant such a course. … The “range” is notconclusive.’” [35] R. v. Huynh, 2006 BCPC 582: This was a fairly large grow operation (1,062 plants) in a house and adjacent warehouse inLangley. Following a trial, Huynh was convicted of possession for the purpose of trafficking and production of marihuana.

The accusedwas a gardener/caretaker rather than a principle operator. He had no criminal record and, by the time of sentencing, was gainfullyemployed in the legal economy. Judge Gulbransen concluded that the sentencing objectives of denunciation and deterrence took aslightly secondary role to rehabilitation and reintegration in Huynh’s case given his excellent work record, relative youth (Huynh’s age isnot stated in the decision), and his low level of involvement (he did not finance or set up the grow). He imposed a conditional sentenceof 1 year on Huynh with no probation to follow.

Key terms were community work service (24 hours), abstention from drugs and alcoholand a curfew for the first 4 months of the sentence. [36] R. v. Wallis, 2007 BCCA 377: This was a medium sized grow operation (638 plants) in a house co-owned by Wallis and hisfather. Wallis entered a guilty plea. He was 28 years old at the time and had no criminal record. There was an electrical by-pass. Wallis had quit steady employment in order to devote himself full time to the production of marihuana. He had good family support andhad paid back his parents for losses incurred on the house as a result of the grow operation.

He received a very positive pre-sentencereport. At trial a jail sentence of 15 months plus probation for a year was imposed. This was upheld on appeal by Justice Levine,concurred in by Kirkpatrick, JA with Thackray, JA in dissent. The majority held that the trial judge had not erred in finding that therewas a need for denunciation and deterrence that outweighed other factors. He did not err in taking judicial notice of a “significant andlucrative illegal marihuana industry in this province”. He was entitled to consider the impact of crime on his local community: ¶ 31.

At¶ 32 Justice Levine wrote: “This court has not precluded the imposition of a conditional sentence for production of marihuana....In every case consideration of the

fundamental principle that: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender", as set out in s. 718.2 of the Code , is of major importance, and may lead to the conclusion that a conditional sentence is appropriate in the particular circumstances.” [ 37 ] After reviewing certain cases where conditional sentences were considered fit she drew a contrast between these and Wallis ’ case at ¶ 36 : “None of these cases involved the principal operator and owner of a large grow operation, who had quit his regular and well- paid employment to carry out the operation.” [ 38 ] At ¶ 40 Levine, JA concluded: “In the circumstances of this offence and this appellant, the sentencing judge properly emphasized the principles of denunciation and deterrence.

The sentence of incarceration is proportionate to the gravity of the offence and the responsibility of the offender. The offence is driven by greed, and has obvious deleterious effects on the communities in which it appears to thrive. The appellant, for no reasons that would serve to mitigate the circumstances of the offence, turned his back on lawful society, and embarked on a criminal enterprise that endangered his community. I find no basis to interfere with the sentence imposed.” [emphasis added] [ 39 ] R. v.

Koenders, 2007 BCCA 378 : This was a very large grow operation (2,100 plants) located in a house in a rural area near Courtenay, B.C. Koenders was 41 and had a record for simple possession of marihuana. He was a user and advocate of marihuana. He was convicted following a trial. He had hired another person to mind the grow operation in exchange for rent. The trial judge imposed a sentence of 2 years less 1 day in jail plus probation of 2 years. Koenders appealed, seeking a reduction in sentence to 1 year in jail. Ryan JA, concurred in by Smith and Levine JJ.A. dismissed Koenders’ appeal.

Between ¶ 11 and 43 Ryan, JA examined many decisions from the Court of Appeal dating back to R. v. Su . At ¶ 13 she commented that there is a discernible range of sentence in these cases which turns on the commercial nature of the grow operation and the personal circumstances of the accused. Sentences for the commercial production of marihuana are heavier than sentences for non-commercial production. At ¶ 20 and 21 in the passage quoted earlier in these reasons, Ryan, JA comments on the need for deterrence and denunciation in crimes of this sort which are the product of choice and planning.

At ¶ 23 she states that a sentencing court must consider the culpability of the offender and not dwell only on the gravity of the offence. She lists many factors including age, whether a principle operator or not, prior record if any, guilty plea or trial, how the accused came to make the choice to produce marihuana and so on.

At ¶ 29 and 30 Ryan JA comments that judges have “increasingly expressed the need for denunciation and deterrence and been less inclined to grant conditional sentences on the basis that such sentences are often insufficient to achieve these goals.” And, at ¶ 30, she says jurisprudence from the Court of Appeal supports the view that denunciation and deterrence may reasonably involve incarceration.

At ¶ 37 Justice Ryan summarizes her review of the law as follows: “As these cases indicate, there are multiple factors that go into the determination of whether conventional incarceration or a conditional sentence is appropriate. ... Where conditional sentences or very short sentences of incarceration have been imposed for the commercial production of marihuana it is possible to find a collection of mitigating personal circumstances. In many cases, there has been a guilty plea coupled with a joint submission. In other cases, there are health or age issues.

Yet again in others the appellant has played a very minor role.” [ 40 ] Continuing at ¶ 42 Justice Ryan concludes: “In the end, the gravity of the offence must be examined along with the personal circumstances of the offender. The cases reveal, with some anomalies, that when dealing with the principal of a large scale, purely commercial operation, with few if any mitigating factors in the personal circumstances, this Court has imposed or sustained a period of at least one year of conventional incarceration.

Where less serious offences are involved, and there are mitigating circumstances, this Court has determined that a strict conditional sentence can properly address the goals of denunciation and deterrence.” [ 41 ] R. v. Anderson , 2007 BCCA 581 : This was a large grow operation (1,163 plants) in a barn in a rural area near Salmon Arm. Anderson entered a guilty plea. He was 38 years old and had no relevant criminal record. A charge of theft of electricity was stayed. Anderson was a caretaker rather than a principal operator.

He had suffered financial and family reverses and was offered the chance to earn some money as the caretaker of this grow and he took it. He came from a stable family and had a good upbringing. By the time of sentencing he was working long hours at a job in the legal economy and paying child support to his ex wife. The sentencing judge imposed a jail sentence of 10 months. On appeal Anderson sought a conditional sentence order saying the sentencing judge overemphasized deterrence and the accused’s “greed”.

Smith, JA, with whom Hall and Mackenzie, JJA concurred, dismissed the appeal. [ 42 ] Commenting on the use of the term “greed” by the sentencing judge, Justice Smith said at ¶ 16 that the gist of this factor for the purposes of sentencing is simply: “…the entering into the business for the profits to be made.

Whether the motive is called greed or not, deterrence is an important sentencing factor in these cases because of the easy money provided by the illegal activity whatever may be the reasons behind the desire for that easy money. “ [emphasis added] [ 43 ] At ¶ 19 Justice Smith commented on the sentencing objectives of denunciation and deterrence in offences of this sort saying that more severe sentences would generally be warranted to deter the spread of grow operations in this province. [ 44 ] R. v. Budd , 2010 BCCA 214 : This was a medium sized grow operation in a house and garage in Nanaimo. Mr.

Budd and others were caught transporting 316 marihuana plants to the house in a truck. It appeared that there had been at least one previous crop harvested at the house. Budd was convicted, following a trial, of production, possession for the purpose of trafficking and trafficking. He was 26 years old and had no record. Budd had limited education due to a learning disability but had qualified as a tugboat captain. At trial, a sentence of 1 year in jail was imposed and a co-accused, found to have a much more limited involvement, was given a suspended sentence and probation.

On appeal by Budd, Kirkpatrick, JA, concurred in by Ryan and Tysoe, JJA, upheld the one year jail sentence. At ¶ 16 to 18 the Court referred to its comments in Anderson and Koenders, above, about the importance of deterrence in cases such as this where there is a well thought out plan to enter into an illegal business in order to make money.

[45] R. v. Giang, 2010 BCSC 1016: This was a mid to small sized grow operation (402 plants) in a house in Burnaby. Theft ofelectricity was proven. Mr. Giang owned the house and lived there, as did his ex-wife Ms. Le. Both were 51 years old. Neither had acriminal record. Mr. Giang had been gainfully employed in the 4 years since the offence as a construction labourer. Justice Pearlmanconcluded that it would not endanger the community if Mr. Giang served his sentence in the community and that the sentencingobjectives of rehabilitation and re-integration could best be achieved enabling Mr.

Giang to maintain his current employment. Thesentencing objectives of denunciation and deterrence are not mentioned. Mr. Giang received a conditional sentence of 15 months withconditions for house arrest for the first 12 months of the sentence (except for work and certain other exceptions) and a curfew for the last3 months of the sentence, abstention from drugs and alcohol and not to possess equipment suitable for producing marihuana. Ms. Lereceived a conditional sentence of 10 months. [46] R. v. Howitt, 2010 BCSC 1475: This was medium to large sized grow operation (700 plants) located on a property in Mission.

There was an electrical bypass but the accused, Howitt, seems to have been unaware of this. The grow was located in an outbuildingrather than the house and Harris, J felt that this lessened the risk of fire. Howitt’s role appeared to be that of a caretaker rather than aprincipal operator. Howitt was in his late 20’s. He had no criminal record. He had been unemployed due to injury prior to gettinginvolved in the grow operation. He was a loyal and supportive son. It appears he was convicted following a trial. Harris, J emphasizesthe sentencing principle of proportionality in his reasons.

A sentence “…must respect the fundamental principle of proportionality….[Proportionality] requires that a sentence not exceed what is just and appropriate given the moral blameworthiness of the offender and thegravity of the offence.” See quotation from R. v. Nasogaluak, 2010 SCC 6 found at ¶ 32 and 33 of this decision. Harris, J imposed aconditional sentence of 18 months (with curfew during the week, house arrest on weekends and 50 hours of community work). [47] R. v.

Nguyen, 1 March 2011, Vancouver Registry # 202972-1-T (BCPC): This was a large grow operation (1,960 plants) locatedin a house in Quesnel, B.C. though the sentencing appears to have taken place in Vancouver. The accused, Nguyen was 34 years old. Hehad no criminal record. He had had good employment as a business analyst in Toronto but suffered serious financial setbacks and lost hisjob during the recession in 2008. He accepted the invitation of a friend to come out to B.C. and act as a gardener/caretaker of this growoperation.

He received $7,000 per harvest and had made up his mind to stay no longer than 3 harvests. Just prior to the third harvest hewas arrested. He had good references from friends and family. The sentencing judge reviewed a number of the same cases as have beencited in the case at bar and concluded that a jail sentence of 1 year rather than a conditional sentence was required. [48] I have also considered other Court of Appeal decisions between 2000 and the present dealing with sentencing in cases involvingmarihuana production.

The cases are summarized in Appendix A to these reasons. [49] Key principles that emerge from all of the cases I have reviewed are as follows[2]: 1. Just as it is an error to presume that a conditional sentence is never appropriate for some offences (such as marihuana production)or always appropriate in other situations (such as for first time offender gardeners/caretakers), it is an error to conclude that, because thegrow operation is particularly large or capable of producing a great deal of money, a conditional sentence is not an available sentencingsanction.

A conditional sentence must always be given serious consideration for any offender who meets the pre-conditions set out in s.742.1: Su (2000), Neubert (2001), Innes (2001), Trinh (2001), Shah (2003), Vu (2003). 2. A conditional sentence can have significant denunciatory, deterrent and punitive effects and it is an error to fail to consider thiswhen deciding on an appropriate sanction: R. v. Proulx, 2000 SCC 5 , [2000] 1 SCR 61, McLennan & Munro (2001), Trinh(2001), Whyte (2002). 3.

It is an error to place either too much or too little emphasis on denunciation and deterrence on the one hand and rehabilitative andrestorative objectives on the other: McLennan & Munro (2001), Neubert (2001), Whyte (2002), Tran (2005), Copeland (2004). 4. It is a common law principle of sentencing that, where possible, courts will not incarcerate first time offenders: Whyte (2002),Trinh (2001), Nguyen (2002). 5.

As it concerns evidentiary findings, a sentencing judge may take judicial notice of the fact that there is a significant and lucrativeillegal marihuana industry in this province and that it has grown in scale and pervasiveness in recent years: Hill (2007) at ¶ 25. Asentencing judge may take account of local conditions when imposing sentence: Wallis (2007), ¶ 31, Ford (2010), ¶ 64. 6. Sentences for commercial production of marihuana are heavier than sentences for non-commercial production: Koenders (2007), ¶13. 7. Where the accused is the “caretaker” or “gardener” and has no prior record – this is Mr.

Chen’s situation - the sentencing optionoften chosen is a conditional sentence. These have ranged in length from 4 months to 20 months with most being either 1 year or 18months in length: Nguyen (2001), Trinh (2001), Nguyen (2002), Godwin (2005), R. v. Huynh, 2006 BCPC 582, Gan (2007), Ngo(2009), R. v. Giang, 2010 BCSC 1016, R. v. Howitt, 2010 BCSC 1475. However, on other occasions, jail sentences ranging between 9months and 1 year in jail, sometimes with probation to follow, have been imposed for caretakers with no prior record. See Anderson(2007), Kwiatkowski (2010), Lee (2011) and R. v.

Nguyen, 1 March, 2011, Vancouver Registry # 202972-1-T (BCPC). 8. Where the accused is the “principal operator” or “directing mind” of the grow operation and has no prior record, conditionalsentences in the range of 1 year to 2 years less 1 day have been imposed. See McLennan & Munro (2001), Neubert (2001), Whyte(2002), Shah (2003), Shaw (2005) and Huon (2010). In one particularly unusual case, Evers (2011), there was a suspended sentence anda fine of $3,000. In many more cases jail sentences have been imposed, sometimes with probation to follow.

The range is from 4months to 2 years less 1 day with most sentences between 8 months and 1 year in jail. See Su (2000), Innes (2001), Vu (2003), Tran(2005), Van Santvoord (2005), Wallis (2007), Koenders (2007), Luu (2007), Vo (2007), Ford (2010), Budd (2010), Kwiatkowski (2010),Au-Yeung (2010), Buller (2011), and Bi (2011). 9. Where the evidence proves that the accused is involved at the mid to high level of the marihuana trade, courts have generallyimposed jail sentences in the range of 2 years less 1 day to 3 years in jail: Aslam, (2007), Heidarian, (2007), Hill (2007).

10. Where the accused has one or more prior convictions for production or trafficking in drugs this is seen as a serious aggravating factor and has generally resulted in sentences of 1 year to 2 years less a day in jail: Tran (2005), Copeland (2004), Readhead (2008), Le (2007). 11. Where a husband and wife are co-accused the female spouse has generally received a conditional sentence on evidence that she was less involved and because of ongoing child care responsibilities. These have ranged in length from 9 months to 18 months. See Shaw (2005), Vo (2009), Huon (2010), Buller (2011) and Bi (2011).

The parity principle requires that persons co-accused as the result of the same grow operation (often these have been spouses) receive similar sentences unless the evidence clearly indicates that they had different levels of responsibility: Huon (2010), Bi (2011). [ 50 ] I will now apply this law to Mr. Chen and the particular circumstances of his case. Analysis A: “Would Not Endanger the Safety of the Community…” [ 51 ] I will begin with the fourth pre-condition for a conditional sentence order set out in s. 742.1. Am I satisfied that if Mr.

Chen were to serve his sentence in the community the safety of the community would not be endangered? [ 52 ] In R. v. Proulx at ¶ 76 it was held that this phrase must be interpreted broadly, to include the risk of any criminal activity. It is not restricted simply to the risk of violent crime or a repetition of the offence for which the accused is being sentenced. [ 53 ] In my view it is unlikely that Mr. Chen would continue to be involved in the production of marihuana. He is a well educated, capable, hard working man who has options in life despite his struggles with the English language.

He has set himself up in business since the offence and as a result may feel now that there is more opportunity to get ahead in the legal economy than was the case before. He has no previous record of breaking the law and has expressed his regret and remorse for having given in to temptation on this occasion. [ 54 ] I conclude that the fourth pre-condition is satisfied in Mr. Chen’s case.

I move now to the final pre-condition or analytic step which is whether the imposition of a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . B: “Would be Consistent with the Fundamental Purpose and Principles of Sentencing…” [ 55 ] I note that none of the aggravating factors set out in s. 10 of the CDSA apply in Mr. Chen’s case so I will not make any further reference to this section. [ 56 ] I will set out the portions of ss. 718, 718.1 and 718.2 which are most relevant to Mr.

He’s situation: s. 718 “The fundamental purpose of sentencing is to contribute , along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives : (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or the community; and (

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community . … s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender . s. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, … (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization … shall be deemed to be aggravating circumstances;

(

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders ….” [emphasis added] 1. Fundamental purpose of sentencing [57]

Section 718 requires that my fundamental purpose when sentencing Mr. Chen must be to “contribute …to respect for the law andthe maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives…”. Ofthe six objectives listed, it is my view that the four which have most application in Mr. Chen’s case are denunciation, deterrence,rehabilitation and acknowledgment of the harm done to the community. I will examine each in turn. (

a) To denounce unlawful conduct “Denunciation is the communication of society's condemnation of the offender's conduct”: R. v. Proulx, above, ¶ 102. [58] Marihuana production cases are difficult to sentence for many reasons. In and of itself the growing of marihuana is entirely non-violent. Viewed rationally, it is nothing more, nor less, than horticulture. In Mr. Chen’s case, as in so many others of this sort, I amstruck with the skill and ingenuity of those who set up and run these operations. I feel sad that all this skill is being lost to the legaleconomy.

As well, there is the moral ambivalence that exists in North America about the use of marihuana. Many, many people use thissubstance which is why the production of marihuana is so lucrative. Yet another difficulty on the moral front is the relative harmfulnessof legal drugs such as alcohol, tobacco and some kinds of prescription drugs.

It is often difficult as a judge to become exorcised overmarihuana usage and production when one sees the devastating effect of legal drugs on so many of the people who pass through thecourts. [59] However, what can be said, without any moral ambiguity, is that those who engage in the commercial production of marihuanahave made a deliberate choice to step outside of the law in exchange for money. And, it is this aspect of the activity that does requiredenunciation.

When the law is broken in a very deliberate fashion and for large profits, as occurs in these cases, respect for the rule oflaw is seriously undermined both amongst those, like Mr. Chen, who decide to take the risk to get involved in such activities and in thewider society, amongst citizens who hear about such conduct. [60] Another aspect of commercial marihuana production which, in my view, requires denunciation is that the earnings from thisactivity are not declared as income – and there is no evidence to suggest that Mr.

Chen is any different in this regard than most of thepeople who come before the courts for such offences. Income tax is not paid. Contributions to social programs like the Canada PensionPlan, Worker’s Compensation program or Employment Insurance are not made.

While enjoying all the benefits of Canadian society –roads, utilities, services, including a court system, medical care and social programs – most marihuana producers are giving nothing (orat least not enough) in return, in the form of taxes and contributions. [61] In the case at bar I heard evidence about how the network of illegality can spread beyond the particular grow operation inquestion to effect other laws and programs in our society. Mr. Kai Suan Chen, who said he was Mr.

Rongzhu Chen’s brother, testifiedthat while he is earning income of about $180,000 per year growing marihuana, he lets someone else use his Social Insurance Number. This person, who, one assumes, is not legally entitled to work in Canada, declares income of about $20,000 per year and pays tax in KaiSuan Chen’s name on that amount of income. Thus, there is not only tax fraud by the marihuana grower (Kai Suan Chen) but also fraudof other kinds by the person using Kai Suan Chen’s identification. Mr.

Rongzhu Chen did not testify and I have no evidence that he isinvolved in this sort of conduct but it does demonstrate the corrupting influence of a large scale, illicit industry of this sort. The “socialcontract” is broken on a large scale. In my view this adds to the anger and frustration law abiding citizens (who do pay their taxes and docontribute to Canada’s social programs) feel as they hear and read about such matters. [62] Yet another consideration is the tendency of marihuana production to attract and generate violence despite the fact that it is anentirely peaceable activity in and of itself.

There is the “grow rip” situation that comes before the court from time to time, wheremarihuana producers are targeted by thieves because those thieves know the producer cannot call on the police for assistance and theresulting tendency of some marihuana growers to arm themselves in return. See, for example: R. v. Porter, 2001 BCPC 191 ,[2001] BCJ 1826 (BCPC), R. v. Bernier, 2003 BCCA 134 , [2003] BCJ 466 (BCCA) and R. v. Prokopchuk, [2004] BCJ 1696(BCPC). Organized crime is also attracted to the lucrative and unregulated earnings associated with this industry. It is important toemphasize that Mr.

Chen was not armed, there were no weapons found in the house on Country Club Boulevard and there is no evidenceof violence in his particular case. As for the involvement of organized crime in the grow operation where Mr. Chen was working, theexpert’s report does not touch on this and there is no other evidence on the point so I will assume, for the purposes of my decision, thatthere was no involvement by organized crime in this case. [63] Finally, the commercial production of marihuana in residential and rural areas (Mr.

Chen was producing marihuana in an upscaleresidential area in Williams Lake) is destructive of a sense of community. Because marihuana production is illegal, it is secretive and itis exclusive – even in a case like this where there were no weapons or “grow op dogs” on duty. Mr. Chen developed no connection withWilliams Lake that I have been told of. He came here simply to work in the grow operation. His permanent address is in Vancouver. There is no indication that he contributed to, or participated in, the local community to any degree.

Instead of the possibility of trust,friendship and greater understanding amongst neighbours, there is secrecy, suspicion and resentment. This is a loss to Mr. Chen and aloss to the community and it is just one of the many negative consequences of this sort of large scale, illegal, commercial activity.

[64] In

summary, on the sentencing objective of denunciation - given that the fundamental purpose of sentencing is to contribute torespect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions, it is my view, for the reasons Ihave stated, that the objective of denunciation must receive considerable weight in this case. (

b) To deter offenders [65] In Proulx at ¶ 107, Lamer, CJC observed that the decision about whether the sentencing objective of deterrence would be betterachieved in any given case by a conditional sentence or by a jail sentence may depend in part on whether the offence is one in which theeffects of incarceration are likely to have any real deterrent effect. Certainly many offenders who pass through the court have stumbledinto crime because of impulsivity, anger, addictions or mental illness. In the moment, there is mens rea, but there is no deliberation andvery little thought of consequence.

In such cases the notion of deterrence is more theoretical than real. However, the commercialproduction of marihuana is different. It is one area of the criminal law in which it is likely that the prospect of incarceration will have adeterrent effect. [66] Madam Justice Ryan put it this way in R. v. Koenders, 2007 BCCA 378 at ¶ 19 to 21: “[19] It stands to reason that sentences for commercial production will be more severe than those for non-commercial production. [20] The reasons for this distinction were aptly described by Lamer C.J.C. (as he then was) in R. v.

Pearson, (SCC), [1992] 3 S.C.R. 665 at 695: The unique characteristics of the [Narcotic] offences subject to s. 515(6)(

d) suggest that those offences are committed in a very differentcontext than most other crimes. Most offences are not committed systematically. By contrast, trafficking in narcotics occurssystematically, usually within a highly sophisticated commercial setting. It is often a business and a way of life. It is highly lucrative,creating huge incentives for an offender to continue criminal behaviour even after arrest and release on bail. [21] In my view, the same reasoning underlies the increased need for denunciation and deterrence in offences related to thecommercial production of marihuana.

The person who becomes involved in the commercial production of marihuana, solely for profit,makes a deliberate decision to operate outside the laws of this country. Unlike most other offences, the production of marihuana is notsituational: no one can operate a grow operation without a large amount of planning, deliberation and organization.” [67] I am satisfied that Mr. Chen has already been specifically deterred from any future involvement in the marihuana industrybecause he is an intelligent and capable man who has a university education and the drive to set up his own small business.

He speakspassionately about his regret at having chosen to get involved in marihuana production and of his desire to integrate into, and contributeto, Canadian society and I accept the sincerity of his statements. [68] However, I do think that the objective of general deterrence must receive considerable weight in this case for the reasons set outin R. v. Koenders, above. It requires planning and deliberation to become involved in marihuana production even as agardener/caretaker.

For this reason it is reasonable to expect that persons contemplating entering the trade will consider not only theprofits to be made but the costs of getting caught. Deterrence is a concept that has real meaning in this type of offence with offenderslike Mr. Chen who are not addicted and who engage in the activity solely to get ahead financially. [69] Counsel for Mr. Chen argues that the crime rate has gone down in Canada since the mid 1990’s when conditional sentences wereintroduced and this confirms the view that conditional sentences can be both punitive and deterrent in nature.

I agree that the law since atleast R. v. Proulx, above, has emphasized the deterrent potential of conditional sentences. I also accept the accuracy of the statement that,overall, the crime rate has been dropping in Canada for some time. However, I do not believe that this can be said of the particularoffence we are confronted with in the case at bar – the commercial production of marihuana. It is my perception that there has been aconsiderable increase in the number of such cases coming before the courts in British Columbia in the past decade.

In the Cariboo,where I regularly sit, this has been particularly obvious since about 2008. In the spring of 2010 Judge Morgan, who also sits in this region, recorded the effect of this on our local court calendar in R. v. Ka Fuk Chiu, April 13th, 2010, Williams Lake Registry # 29544 at ¶97: “Another local factor related to the increasing number of marihuana grow operations that are being discovered in this region is theincreasing demand on sparse local police and judicial resources.

In 100 Mile House, there are currently 11 marihuana production filesbefore the Provincial Court requiring 31 days of trial/preliminary inquiry time. In Williams Lake there are currently 9 marihuanaproduction files before the Provincial Court requiring 29 days of trial/preliminary inquiry time. Based on recent media reporting, we canexpect there are several more in the pre-court pipeline.

This represents a high demand on limited local police and judicial resources.” [70] Counsel also makes the point that true deterrence is achieved not through jail sentences imposed by courts but through remediesthat are more civil in nature such as the forfeiture of property and the aggressive collection of unpaid taxes on illicit earnings. I don’tdisagree that civil and economic remedies may be a better way to deal with those involved in the black market economy that has grownup because of the demand for marihuana in our society.

However, as was touched on during submissions, the fact that there may bebetter ways to deter marihuana producers does not mean that I should ignore or devalue the sentencing objective of deterrence whendealing with such a case in the criminal courts. [71] In

summary, I find that deterrence must receive considerable weight in the case at bar. (

c) To separate the offender from society [72] As Lamer, CJC pointed out in Proulx at ¶ 108 this sentencing objective has no application in a s. 742.1 analysis. (

d) To assist in rehabilitating offenders

[73] Mr. Chen is not addicted, nor is he mentally ill or in need of counselling. He is a hard worker who is motivated to get ahead byhis own ambition and by his desire to provide support for his son and mother in China. For these reasons I conclude there is noparticular need for rehabilitation in the usual sense in Mr. Chen’s case. (

e) To provide reparations [74] This sentencing objective has no application in Mr. Chen’s case. Whoever owned the house on Country Club Boulevard hasdeclined to advance a claim for restitution. In fact, according to Kai Suan Chen, this person was a directing mind behind the growoperation that was taking place there. (

f) To promote a sense of responsibility in offenders and acknowledgment of harm done to the community [75] This sentencing objective, along with the objectives of reparation and rehabilitation, is essentially restorative in nature: Proulx, ¶109. It does not have a lot of application in Mr. Chen’s case in my view. He has already stated his regret over having made the choice toget involved with the marihuana industry. Also, it seems to me that restorative approaches do not lend themselves quite as well to casessuch as this where the principle victim is a concept or a value - namely, the rule of law - rather than an individual.

Summary – fundamental purpose and principles of sentencing [76] In

summary, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peacefuland safe society by imposing just sanctions. The sentencing objectives that have the most application in Mr. Chen’s situation are (a)denunciation and (

b) deterrence. Rehabilitative and restorative goals have less application given the type of offence and Mr. Chen’sparticular situation. [77] Were I to impose a conditional sentence on Mr. Chen it would likely be for 1 year to 18 months. The conditions I wouldcontemplate would be house arrest with exceptions for work, religious observance, exercise, and shopping once a week. Abstention fromdrugs and alcohol would be required.

Community work would likely also be ordered despite my reservations about its utility in the caseat bar. [78] The combination of the length of the order – a conditional sentence order would be longer than any jail sentence I might impose- the restrictive conditions and the stigma of being under such restrictions can be very arduous: R. v. Whyte, 2002 BCCA 293 ,[2002] BCJ 1040. However, a jail sentence will generally be a more onerous penalty because it results in a complete deprivation ofliberty in an institution rather than the partial deprivation of liberty in the home and community. [79] In R. v.

Anderson, 2007 BCCA 581, a case, like this one, involving a caretaker/gardener with no prior record, Smith, JA said thefollowing about the role of denunciation and deterrence in sentencing marihuana producers at ¶ 19: “This Court has made it clear in many cases such as R. v. Su, 2000 BCCA 480, R. v. Van Santvoord, 2007 BCCA 23, R. v. Wallis, 2007BCCA 377 and R. v. Koenders, 2007 BCCA 378, that such operations will generally warrant more severe sentences in order todenunciate and deter the illegal conduct and to contain the spread of marihuana grow operations in this province.” [emphasis added] 2.

Proportionality – s. 718.1 [80] The next step is to consider proportionality. S. 718.1 provides: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [81] In R. v. Proulx, at ¶ 82, Lamer, CJC said the following about the principle of proportionality: “Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the "punishment fitsthe crime". As a by-product of such an individualized approach, there will be inevitable variation in sentences imposed for particularcrimes.

In M. (C.A.), supra, I stated, at para. 92: ‘It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime...’” [82] Counsel for Mr. Chen has also referred the court to the quotation from R. v. Nasogaluak, 2010 SCC 6 found at ¶ 32 and 33 of R.v.

Howitt, 2010 BCSC 1475: “[A sentence] must respect the fundamental principle of proportionality…. [Proportionality] requires that a sentence not exceed what isjust and appropriate given the moral blameworthiness of the offender and the gravity of the offence.” [83] The fact that denunciation and deterrence are found to be the key sentencing objectives ought not to blind the court to the specificcircumstances of Mr.

Chen and the specific circumstances of the offence he was involved in. [84] Circumstances relevant to the gravity of the offence in this case are: large grow operation in a house in a residentialneighbourhood, no weapons present, and the Crown has failed to prove an electrical bypass. Circumstances relevant to Mr.

Chen’spersonal circumstances are: his lack of a criminal record, his good references, the fact that I have found his role was that of agardener/caretaker rather than as a principal operator, his potential to excel in the legal economy, the fact that he got involved because hewas unemployed at the time and the fact that he supports his mother and son in China.

Given these particular circumstances, counselargues, a conditional sentence would be a proportionate response whereas a sentence of incarceration would be disproportionate. [85] Counsel for the Crown argues that proportionality ought to be addressed through the length of the jail sentence rather than byimposing a conditional sentence. The Crown acknowledges that it is certainly open to the court to impose a conditional sentence on Mr.

Chen but emphasizes that the sentencing principle of proportionality does not require this; proportionality can be addressed through thelength of any jail sentence that is imposed. [86] In my view, given that the need for denunciation and deterrence is high in this case because it is a crime that is engaged in verydeliberately, for money, the Crown is correct in its position that proportionality must be addressed through the length of the jail sentencethat is imposed rather than by imposing a conditional sentence. 2. Other sentencing principles – s. 718.2 (

a) Mitigating and aggravating circumstances [87] In my view the mitigating circumstances in Mr. Chen’s case are: 1. He has no criminal record; 2. He sends money to help support his mother and young son in China; [88] I find that the principle aggravating factor is: 1. The grow was commercial in nature and large in size. [89] The presence of an electrical bypass is often cited in the cases as an aggravating factor particularly in a residential neighbourhoodwhere there is increased risk of fire.

However, as I said earlier, there is no admissible opinion evidence on the meaning of the electricalalterations found in the house where Mr. Chen was working and therefore I am proceeding on the basis that this particular aggravatingfactor is not present in Mr. Chen’s case. [90] I have concluded that Mr. Chen was only the gardener/caretaker of this grow operation and not a principal operator. In my viewthis is not a mitigating factor. It is a feature of this offender and this offence which must receive consideration on sentencing but it is nota mitigating factor.

The reason it is not mitigating is because gardeners and caretakers are essential to the marihuana industry. Withoutpeople like Mr. Chen, who, in exchange for money, are willing to leave home and family, travel far to the north, live in ratheruncomfortable conditions for several months at a time while tending to a marihuana crop – all the while accepting the risk of beingarrested by the police and prosecuted through the courts - this lucrative, illegal activity would not have thrived in the way that itapparently has. In this regard, see R. v.

Aslam, (2007) at ¶ 7 – 10. [91] Finally, under the heading of “mitigating and aggravating circumstances” I note that Parliament deems it to be an aggravatingcircumstance if there is: (iv) “evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization…” [92] Although Mr.

Chen was clearly working for, or with, somebody else, possibly the owner of the house (this inference is availablefrom Kai Suan Chen’s evidence), I find there is insufficient evidence to conclude that he was doing so for at the direction of or for thebenefit of a criminal organization. Therefore, I will proceed on the basis that this aggravating circumstance has no application in the caseat bar. (

b) Similar sentences, similar offenders, similar circumstances [93]

Section 718.2(

c) directs that a sentence should be “similar to sentences imposed on similar offenders for similar offences insimilar circumstances.” [94] As noted at ¶ 50, item # 7 above, the sentencing option often chosen for a “caretaker” or “gardener” with no prior record, likeMr. Chen, is a conditional sentence in the range of a year to 18 months. However, in other cases jail sentences were imposed in therange of 9 months to 1 year in length, sometimes with probation to follow. In three of those cases the sentences were reviewed by theCourt of Appeal and upheld. See R. v. Anderson, 2007 BCCA 581, R. v. Kwiatkowski, 2010 BCCA 238 and R. v. Lee, 2011 BCCA 73. (

c) All available sanctions other than imprisonment [95]

Section 718.2(

d) provides that an offender should not be deprived of liberty if less restrictive sanctions are “appropriate” andsub-section (

e) provides that all available sanctions other than imprisonment that are “reasonable in the circumstances” should beconsidered for all offenders. [96] The available sanctions in this case, counsel agree, are a conditional sentence or a jail sentence.

In my view a conditionalsentence would neither be “appropriate” nor “reasonable in the circumstances” given the particular need for denunciation and deterrencein a case such as this where the offender makes a conscious and well thought out choice to step outside the law for money. [97] There is a common law principle that the Court should avoid, where possible, incarcerating first time offenders for non-violentoffences. See R. v. Whyte, 2002 BCCA 293 , [2002] BCJ 1040. Mr. Chen is a first time offender and the commercialproduction of marihuana is non-violent in and of itself.

However, as I said in ¶ 63 it tends to give rise to violence. And, as I said in ¶ 61and 62, it undermines respect for the law and has a corrupting influence both on those who participate in it as well as on those whoobserve it being carried on in the community on a commercial scale. Therefore, it is my view, that a sentence of incarceration isappropriate here despite the fact that Mr. Chen is a first time offender. Conclusion

[98] A conditional sentence order is available as a sentencing option in the case at bar. However, when the purpose and principles ofsentencing set out in ss. 718, 718.1 and 718.2 are applied to the facts of this case and to Mr. Chen’s particular circumstances it is myview that a conditional sentence would not be a “just sanction”. The need for denunciation and deterrence is high and, in my view, theonly suitable way to express or achieve those objectives is through a sentence of incarceration rather than through a conditionalsentence. [99] The range of sentence that is appropriate in the case of Mr.

Chen is approximately 1 year in jail given that this was a large growoperation (1,163 plants) and given that I have found that Mr. Chen was a gardener/caretaker rather than a principal operator. Mr. Chentook the matter to trial and called a witness who I found lacking in credibility. I agree with counsel for Mr. Chen that this is not anaggravating factor; it simply means that the mitigating factor of an early guilty plea is missing in this case.

Bearing in mind the principleof proportionality and the other sentencing principles, I conclude that a global sentence of 1 year in jail with 1 year of probation to followis a “just sanction” in Mr. Chen’s case. More specifically, I sentence Mr. Chen on each count as follows: Count 1: Production of marihuana, contrary to s. 7(1), CDSA: 1 year in jail plus 1 year of probation with the mandatory conditions, plusreporting, inform the probation officer of residence and not to be in possession of equipment or paraphernalia suitable for the productionof marihuana.

Count 2: Possession of marihuana for the purpose of trafficking, contrary to s. 5(2), CDSA: 1 year in jail plus 1 year of probation, bothto be served concurrently with, and on the same terms as, the sentence on count 1. [100] The Victim Fine Surcharge is payable by Mr. Chen not later than 2 years from the date sentence is imposed. [101] Pursuant to s. 109 of the Criminal Code I am required to prohibit Mr. Chen from possessing a firearm or any of the other itemslisted in that

section for a period of 10 years. [102] Finally, I order forfeiture of all items seized in accordance with this investigation pursuant to s. 16 of the CDSA. _______________________ Bayliff, E.L., P.C.J. Appendix ‘A’ R. v. Sidney [2000] B.C.J. No. 2208 (BCCA) Conviction arising out of a grow operation in central B.C. At trial a sentence of 2 years less 1 day was imposed. On appeal this wasreduced to “time served” – apparently a sentence of about 8 months in jail. No details about the Accused or the facts of the case aregiven in the appeal decision. No reasons are given for reducing the sentence.

In a brief oral decision Madam Justice Southin commentedthat the sentencing decisions in matters of this sort are not all consistent and that this is perhaps to be expected given that “…so much isleft to the discretion of the court below and to this court…”. R. v. Su 2000 BCCA 480 , [2000] B.C.J. No. 1816 (BCCA) Conviction, following a trial, for Cultivation of Marihuana and Possession for the Purpose of Trafficking (Marihuana). 300 plants wereseized with a prospective value of about $100,000. At trial a sentence of two years less a day was imposed. On appeal this was reducedto 1 year in jail.

The court rejected a Conditional Sentence. The Accused was 29 years old with no record. He was a recent immigrant. The Court of Appeal found that the trial judge had erred in focussing too much on trying to establish a new and higher range of sentencefor marihuana grow operations rather than on the personal circumstances of Mr. Su.

However, the court did agree with the trial judgethat a jail sentence rather than a Conditional Sentence was appropriate because of the need for denunciation and deterrence in matters ofthis sort and Justice Lambert offered the following guidance to trial judges: “12 months imprisonment is in the range that ought to be in place and considered for a first offender in a grow operation of thisdimension.” R. v. McLennan & Munro 2001 BCCA 299 , [2001] B.C.J. No. 811 (BCCA) Guilty plea part way through the trial to a charge of Production of Marihuana. This case took place in the vicinity of 100 Mile House, not

far from Williams Lake, the location of the case at bar. 2,472 plants were seized with a prospective value of about $370,000. At trial asentence of 2 years less a day was imposed. On appeal this was reduced to a Conditional Sentence of the same length (the conditions arenot set out in the reported judgement). Both McLennan and Munro were in their early 50’s and had either no record or an old record thatwas not relevant.

The trial judge gave lengthy reasons touching on, amongst other things, the very large size of this grow operation, theprevalence of marihuana grow operations in the rural area surrounding the community of 100 Mile House, the impact this activity has onthe community, and the need for general deterrence. He concluded that a Conditional Sentence would not adequately meet thesentencing objective of deterrence and imposed a jail sentence.

However, the Court of Appeal overturned this decision and substituted aConditional Sentence on the basis that the trial judge had put too much emphasis on the deterrent effect of jail. R. v. Neubert 2001 BCCA 371 , [2001] B.C.J. No. 1103 (BCCA) Conviction for Production of Marihuana and Possession for the Purpose of Trafficking (Marihuana). Somewhat less than 150 plantswere involved. A dollar value is not given in the judgement. At trial a sentence of 2 years less one day was imposed. On appeal thiswas overturned and reduced to a Conditional Sentence of 1 year (the conditions are not set out in the judgement).

The Accused was 31years old with no significant previous record. He had re-located to Winnipeg where he was working part time and supporting hisdaughter and providing home care to an elderly relative. He sought a Conditional Sentence. Counsel for the Crown on the appealagreed that the sentence should be lowered but the Crown opposed a Conditional Sentence. Mr. Justice Low of the Court of Appealfound that the trial judge (who was the same judge as in the Su case) erred in trying to increase the range of sentence for this sort ofoffence without a proper evidentiary background having been laid by the Crown.

He also concluded that “none of the principles ofsentencing…requires a jail sentence to be served in this province”, allowed the appeal and imposed instead a Conditional Sentence of 1year. R. v. Nguyen, 2001 BCCA 461 Plea of guilty to Production of Marihuana. 106 plants were seized for a prospective value of $59,000 to $111,000. The Defendant was a32 year old mother of two young children. The court found that while she had provided the premises to grow the marihuana, she didnothing to tend the crop and knew very little about the operation or the risks associated with it. She had no previous record.

Counselmade a joint submission for a Conditional Sentence of 1 year but this was rejected by the sentencing judge as not adequately deterrent ordenunciatory. The sentencing judge imposed a sentence of 9 months in jail followed by Probation of 1 year. The Court of Appealallowed an appeal of this sentence and substituted a Conditional Sentence of 1 year (curfew, home inspection, Community Work of 50hours). The Court found that the sentencing judge put too much weight on the aggravating circumstances and too little weight on themitigating circumstances. R. v. Innes 2001 BCCA 478 , [2001] B.C.J.

No. 1713 (BCCA) Guilty plea to Production of Marihuana. 374 plants were seized from a rented house in a residential area with a prospective value ofbetween $75,000 and $175,000. At trial, a sentence of 9 months jail was imposed. On appeal this sentence was upheld. The Accusedwas age 27 and had two previous convictions for Possession of a Narcotic for which he had received a small fine or a period ofprobation.

Madam Justice Ryan noted that a conditional sentence is always available in cases involving marihuana grow operations nomatter how big or sophisticated the operation is and that it would be an error of law to hold otherwise.

After reviewing the sentencingjudge’s decision in detail and commenting that he had considered the deterrent ability of Conditional Sentences, the purposes andprinciples of sentencing, the corrupting effect of the “marihuana industry” on society and its institutions and the personal circumstancesof the Accused, Justice Ryan concluded that the sentencing judge committed no error of principle, nor did he over emphasize anyparticular objective or principle. The sentence was upheld. R. v. Tran 2001 BCCA 503 , [2001] B.C.J.

No. 1983 (BCCA) Convicted of Production of Marihuana and Possession for the Purpose of Trafficking (Marihuana). 3,900 marijuana clones and 45mother plants were seized from a rented townhouse in a residential area. The crop had a prospective value of about $58,000 per crop. Itwas estimated that the operation, termed a “clone factory”, was capable of producing 8 crops per year. At trial a Conditional Sentence of2 years less one day was imposed. On appeal this was increased to a jail sentence of the same length. Tran was 36 years old, married,with two young children. He was employed in a family restaurant business.

A serious aggravating factor was that just six months priorto his arrest he had been convicted of the same offence. At that time he received a short jail sentence and a $3,000 fine. The sentencingjudge had concluded that Tran’s favourable personal circumstances – his recent marriage, family and stable employment – justified aConditional Sentence.

However, Justice MacKenzie, speaking for the Court of Appeal held that the sentencing judge erred in failing togive adequate weight to the sentencing objective of deterrence in a situation where the Accused was the principal participant in a secondoffence and increased the sentence to one of jail. R. v. Trinh 2001 BCCA 677 , [2001] B.C.J. No. 2526 (BCCA) Guilty plea to Production of Marihuana. The number of plants and prospective value of the crop is not set out in the appeal judgement. At trial a sentence of 9 months jail was imposed.

On appeal this was reduced to a Conditional Sentence of 1 year (curfew, not to possesshigh intensity light bulbs). Trinh was 45 years old with no previous record. He was the sole caregiver for his two young children. Hewas in poor health. He was a recent immigrant to Canada from Viet Nam. The evidence was that Trinh was only the ‘caretaker’ of the

grow operation and would receive little benefit from its sale. Madam Justice Rowles, speaking for the Court of Appeal found two errorsat the trial level. First, it is an error to conclude that in the case of large grow operations with many plants, a jail sentence is required. Second, it is an error to fail to consider whether a Conditional Sentence would serve the sentencing objectives of deterrence anddenunciation. R. v. Whyte 2002 BCCA 293 , [2002] B.C.J. No. 1040 (BCCA) Conviction for Possession for the Purpose of Trafficking (Marihuana). “Several hundred plants”.

The value of the crop is not set out inthe judgement. At trial a sentence of 1 year in jail was imposed. On appeal this was changed to a Conditional Sentence of 2 years lessone day (the terms are not set out in the judgement). Whyte was 35 years old and had no record. Madam Justice Southin, speaking forthe Court of Appeal, said that the sentencing judge erred in failing to give enough weight to the principle that, where possible, courtsshould refrain from incarcerating first time offenders for non-violent crimes.

She also commented that a Conditional Sentence “willalways contain a very severe restriction on liberty, and therefore should be a deterrent to those who would break the law.” Mr. JusticeSmith gave brief concurring remarks in which he distinguished R. v. Su, above, where the Court of Appeal had rejected a ConditionalSentence in the case of a first time offender and imposed a jail sentence of 1 year for a similar offence, saying the case was “quitedifferent on its facts”.

It would appear that Whyte admitted responsibility whereas Su did not and Su was also found to have lied to thetrial judge and to the Probation Officer. R. v. Nguyen 2002 BCCA 686 , [2002] B.C.J. No. 2858 (BCCA) Guilty plea to Production of Marihuana. 85 plants were seized with a prospective value of about $31,000 to $47,000. At trial a sentenceof 6 months jail was imposed despite a joint submission by counsel that a Conditional Sentence was appropriate. On appeal this wasreduced to a Conditional Sentence of 4 months (the conditions are not stated in the judgement). Nguyen was 31 years old with norecord.

He was only the “caretaker” of the operation and was described as “unsophisticated”. He told the Probation Officer that he didnot know that the production of marijuana was illegal. Mr. Justice Esson, speaking for the Court of Appeal found that the sentencingjudge committed two errors. First, the sentencing judge gave insufficient consideration to the joint submission. Second, the court shouldavoid, if possible, incarcerating first time offenders. He compared the case to R. v. Trinh and held that a Conditional Sentence shouldhave been imposed. R. v.

Shah 2003 BCCA 294 Conviction for Production of Marihuana. 1,535 plants were seized with a prospective value of about $537,000. At trial a sentence of 3months in jail was imposed. On appeal this was changed to a Conditional Sentence Order of 1 year (curfew, restriction on cell phonesand pagers, and other conditions not set out in the judgement). Shah and his co-Defendant, Kokak, were ages 28 and 29. One had noprior convictions, the other had an unrelated and insignificant record. Mr.

Justice Low, speaking for the Court of Appeal, found that thesentencing judge had erred in emphasizing the large size of the marihuana crop and holding that, for that reason, a Conditional Sentencewas not available to the Defendants. “The size of the crop should not stand in the way of the imposition of a Conditional Sentence.” R. v. Vu 2003 BCCA 339; [2003] B.C.J. No. 1444 (BCCA) Convicted of Possession for the Purpose of Trafficking (Marihuana). 1,878 plants were seized with a prospective value of about $1.4million. At trial a sentence of 1 year jail plus probation of 1 year was imposed.

This sentence was upheld on appeal. Vu had nocriminal record. His age is not stated. He had many dependants in his extended family. He was employed. The trial judge had rejecteda Conditional Sentence for two reasons. First, he was of the view that Vu had huge financial pressures which might lead him to re-offend were he to serve his sentence in the community.

Second, while acknowledging the deterrent and denunciatory potential of aConditional Sentence he concluded that the “marihuana industry” posed a sufficiently large problem in the community that thesentencing objectives of denunciation and deterrence could only be achieved by the imposition of a jail sentence. Mr. Justice Smith,speaking for the Court of Appeal, reviewed the sentencing judge’s reasons in detail as well as most if not all of the court’s post-Proulxsentence appeals in matters of this sort. He concluded that while the sentencing j

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