R. v. Daniels Date:, 2015 BCPC 146

Citation: R. v. Daniels Date: 20150512 2015 BCPC 0146 File No: 32425-1 Registry: Fraser Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIAM COADY DANIELS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. W. CALLAN Counsel for the Crown: J. Swales, Q.C. Counsel for the Defendant: F. Fatt Place of Hearing: Vanderhoof , B.C.

Dates of Hearing: May 6 and July 8, 2013 Date of Judgment: May 12, 2015 BACKGROUND [ 1 ] Mr. Daniels has pleaded guilty to cultivation of marijuana and theft of electricity. The charges arose after the police attended Mr. Daniels’ farm on November 24, 2011 in execution of a Search Warrant and found marijuana “grow op” in the barn. The farm is near Fraser Lake, British Columbia. [ 2 ] The Crown is seeking a six month jail term for the following reasons: 1. Mr. Daniel’s conduct demands a sentence that reflects the principles of denunciation and general deterrence; 2. The police found 203 marijuana plants at Mr.

Daniels’ farm. The Crown pointed out that for a single person, who is a heavy user this would be a 27 year supply; 3. There were eleven plastic baggies seized each with half a pound of marijuana, the existence of which I am urged by the Crown to conclude that the marijuana was to be sold commercially; 4. Mr. Daniels was the owner operator of this “grow op”. The plants were located behind a locked door in the barn. From the Crown’s description of the property there had obviously been some planning and preparation involved in setting up the operation; 5.

There were two loaded firearms on the property, a 22 caliber rifle by the front door and a 45 caliber pistol in a safe with $10,730.00 in cash; 6. There was an electrical bypass to support the grow op, in other words, there was a theft of electricity from BC Hydro; 7. The crop was being grown for financial gain; 8. Marijuana grow ops attract other kinds of crime and other criminals as such, they are a danger to the community; 9.

The grow op is at the low size of the mid-range of grow ops. [ 3 ] The Defence argues that a Conditional Sentence Order of one year is a more appropriate sentence due to the following factors: 1. A CSO, properly structured can be a sentence of denunciation and deterrence; 2. Mr. Daniels has come forward and pleaded guilty, which is always a factor in mitigation; 3. He is now age 47 with two dependents, a spouse and step daughter; 4. The offences were out of character. Exhibit One contained six reference letters attesting to Mr. Daniels good character both before and after the events. Mr.

Daniels had grown up close to the sea and after some work and study he had obtained his certificate as a Marine engineer. He was employed by BC Ferries; 5. At the time of the offences, Mr. Daniels was facing the loss of his farm. He had lost his position with BC Ferries due to a job related injury to his hand. He had to undergo eight operations to try and correct the injury, but did not regain his fine motor skills. He did not return to work at BC Ferries and he was behind in the payments on his mortgage; 6. There were significant stresses in Mr.

Daniels’ life given the loss of his employment and that the Workers Compensation payments did not cover his mortgage. As he told the police he became depressed and made some “stupid decisions”. His marriage to his wife, Laura Daniels, came to an end after his arrest; 7. His current occupation is that of a construction supervisor for a company called Opera Developments. He has some 50 tradespeople who report to him and he superintends a number of projects. I note the photos in Exhibit 2 which show the structures he has built and in a couple of instances, designed. His counsel has advised that if Mr.

Daniels goes to jail some of his projects may be suspended and some of his tradespeople may be laid off; 8. The Defence agrees with Crown this is a small grow op; 9. The Crown opposes a CSO, but concedes there is no legal barrier that would prevent a CSO from being imposed in this case. ISSUES [ 4 ] The question for the Court is whether, in this case, a one year Conditional Sentence Order with stringent conditions would be

an appropriate sentence for Mr. Daniels. [ 5 ] If such a sentence is not appropriate, how long should Mr. Daniels spend in prison. THE LAW Statutes [ 6 ]

Section 7 of the CDSA states in part: 7(1) Except as authorized under the regulations, no person shall produce a substance included in

Schedule I, II, III, or IV.

(2) Everyone who contravenes subsection (1) (

b) Where the subject-matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for term not exceeding seven years. [ 7 ]

Section 718 of the Code states: 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 to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [ 8 ]

Section 718.1 of the Code states: 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 9 ]

Section 718.2 of the Code states in part: 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; (

b) a sentence should be similar to sentences imposed on similar offenders for a 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, with particular attention to the circumstances of Aboriginal offenders. [ 10 ] The Crown provided a number of cases from the Court of Appeal concerning the factors to be considered in sentencing an accused, convicted of, or who plead guilty to, the offense of cultivation of marijuana and the theft of electricity from BC Hydro. [ 11 ] In the main the case law relied on by the Crown illustrate cases where a jail sentence was imposed rather than a CSO. [ 12 ] R. v. Budd , 2010 BCCA 214 (

a) The Court considered an appeal of a sentence of one year incarceration on charges involving possession of marijuana for the purpose of trafficking, trafficking in marijuana and production of marijuana. Mr. Budd was 26 years old at the time of the offence. He did not have a criminal record. He had worked in the fishing industry and had qualified as a tugboat captain. The convictions were expected to affect his employability because he would be unable to enter Alaskan waters.

At sentencing the Crown had emphasized the principles of denunciation and deterrence, whereas the Defence had argued that a conditional sentence that permitted him to maintain his employment was a fit disposition. The Crown relied on this case for the proposition that individuals involved in sophisticated large-scale marijuana grow operations will generally warrant more severe sentences in order to denounce and deter the illegal conduct and to contain the spread of marijuana grow operations in this province. In that case, the sentence appeal was dismissed.

(

b) At para 17 in Budd the Court wrote: “As this court stated in Koenders at paragraph 21 “the person who becomes involved in the commercial production of marijuana solely for profit makes a deliberate decision to operate outside the laws of this country. Generally the principles of large-scale commercial operations with few if any mitigating factors in the personal circumstances of the offender, will result in the imposition of a period of at least one year of conventional incarceration ( Koenders, at para 42). In the case at bar the judge found the grow operation to be sophisticated mid-level commercial operation. (

c) I’m not persuaded that the judge erred in imposing a one year jail sentence rather than a conditional sentence. He was alive to the problem of marijuana grow operations in the local community and the need to deter others from embarking on similar enterprises. Mr. Budd’s involvement was found to be much more prominent than that of his co accused, who pleaded guilty and is therefore deserving of greater penalty. In my view, having regard to the significant differences in culpability, the party principles are not a significant consideration in this case, and has not been pressed on appeal. “ (

d) In Van Santvoord , the accused was ordered to pay a fine of $20,000.00 on two counts of production of marijuana. The sentence was appealed by both parties. The Crown relied on this case for the proposition that the case of R. v. Su 2000 BCCA 480 , is still the guideline for the proposition that denunciation and deterrence are appropriate sentencing objectives were commercial marijuana operations are involved. (e) “ Su remains a guideline and has been referred to in many subsequent decisions of this court.

The principles of denunciation and deterrence are appropriate sentencing objectives were commercial marijuana operations are involved, for the proposition that a conditional sentence for the owner of the operation is generally unsuitable, and for a guideline range. “ (

f) The prosecution also argued the decision in R. v. Mathew Man Fung Lee 2011 BCCA 73 . The Court of Appeal upheld a 12 month jail sentence for production of marijuana. The Crown relied on this case for a list of the aggravating and mitigating factors that a judge ought to consider in sentencing offenders involved in grow operations. (g) “As noted in Para 32 here the trial judge referred extensively to the case law which was provided to her, including R. v Budd 2010 BCCA 214 .

She referred to the purposes and principles of sentencing generally; but her reasons are clear that a CSO was not, in her view consistent with the principles of denunciation and deterrence. All the circumstances were taken into account. In my respectful view what would've been better to address the issue of whether serving a CSO in the community would endanger the safety of the community, her decision rested on another prerequisite for the imposition of a CSO and that is that the sentence must be consistent with the fundamental purposes and principles of sentencing.

She did not commit an error in this regard." [ 13 ] I conclude the aggravating factors to be considered are: 1. A profit motive for engaging in the cultivation; 2. The preparation planning and expense setting up the grow op; 3. Grow ops can attract other kinds of crime, in particular grow rips, or a robbery by others of the product produced; 4. Threats to the safety of the community. [ 14 ] The Defence presented three decisions from the Provincial Court and one decision from the Supreme Court in which Conditional Sentence Orders were ordered by the Court rather than a term of imprisonment. The decision of R. v.

Pierini and Burton, Prince George 36754-1, December 11, 2013, a decision of the Honourable Judge M.J. Brecknell addressed some of the factors that should be considered and provides a list at paragraph 35: 1. The court must consider all available sanctions other than prison. If the sentence is to be less than two years, the court must first consider a conditional sentence and impose prison only if it concludes a conditional sentence is not appropriate in light of the provisions of

section 742.1, sections 718 through 718.2 and the case law. There is no presumption for or against a conditional sentence in marijuana production cases. 2. Sentencing is an individualized process which requires the court to consider the nature of the offense, the degree of responsibility of the offender, the offender's circumstances and any other relevant factors in crafting a just and appropriate sentence. The court must not place either too much or too little emphasis on any of the sentencing factors in determining the sentence. 3.

Denunciation and deterrence are important sentencing principles with regard to offenses involving the production of marijuana. 4. The conditional sentence may have significant denunciatory and deterrent effects particularly if it has strict conditions. 5. The court cannot dismiss a conditional sentence simply because the grow operation is large and/or sophisticated or highly capitalized. However the commercial nature of an operation particularly one involving an excess of 500 plants can be taken into account by the court in weighing the sentencing objectives of denunciation and deterrence. 6.

The court may take judicial notice of the significant and lucrative marijuana production industry in British Columbia and the negative impact those crimes have on local communities. 7. Factors such as whether or not there’s been an electrical power bypass and whether the operation is in a residential or rural area may have an influence on the type of sentence to be considered. 8. If the defendant is only a “gardener and has no prior record and has demonstrated capacity for rehabilitation, a Conditional

Sentence is more generally available. 9. If the defendant is a principal operator and is involved in a substantial way in establishment and operation of the grow operationor has previous convictions for similar offenses, a conditional sentence will not usually be appropriate unless the court determines thereare compelling mitigating circumstances regarding the offender’s situation. 10.

A conditional sentence may not adequately address general deterrence in circumstances where there is a large commercialoperation at a particular time and in a particular location even after due consideration is given to the fact that the defendant is a first-timeoffender, not a principal operator but rather a "gardener" and shows a demonstrated capacity for rehabilitation. CONDITIONAL SENTENCE ORDER [15] In the case of R. v. Chen 2011 BCPC 297 , 2011 BCPC 0297, the Honourable Judge E. L.

Bailiff considered thequestion of conditional sentences in relation to charges of cultivating marijuana at para 16. 16. “The authority to impose a conditional sentence of imprisonment is found in

section 742.1 of the Criminal Code has fivepreconditions: 1. the offense must not be a serious personal injury offense as defined in

section 752, terrorism offense or an organized crimeoffense with a maximum jail sentence exceeds 10 years; 2. there must be no minimum sentence prescribed for the offense; 3. the court sentence imposed must be less than two years inlength; 4. the court must be satisfied that service of the sentence in the community will not in danger the community; 5. the court must be satisfied that the service of the sentence in the community will be consistent with the fundamental purposeand principles of sentencing set out in subsection 718-718.2. 17. The first, second and third preconditions are satisfied in the case at bar.

The production of marijuana is not a personal injuryoffense or a terrorism offense and in this case there is no evidence that it is a serious offence committed for the benefit of, or at thedirection of, an association with a criminal organization. There is no minimal sentence for the production of marijuana. I agree withcounsel that the appropriate sentence is less than two years in length. 18. The fourth and fifth preconditions are more difficult. 19. R. v. Proulx 2000 SCC 5 , [2000] 1SCR 61 (SCC) remains a leading authority on the nature of the conditional sentence.

It is helpful to once again review in some detail all the questions posed by this case what sentence is sanctioned for a non-addicted firstoffender caretaker of characteristics of Mr. Chen for the offense of production of marijuana, and at para. 25: 25. Concerning the objective denunciation Chief Justice Lamer said the following in para.106: the amount of denunciation providedby conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed in thecommunity in which the sentences to be served.

As a general matter the more serious the offense and the greater the need fordenunciation the longer and more onerous the conditional sentence should be.

However there may be certain circumstances in which theneed for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of theoffender’s conduct.” [16] The sentencing provisions of the Criminal Code, ss. 718 to 718.2, provide for an individualized sentencing process in which thecourt must take into account not only the circumstances of the offence, but also the specific circumstances of the offender (see R. v.Angelillo 2006 SCC 55, at para 22). A sentence must also be similar to other sentences imposed in similar circumstances (see R. v.

L.M.2008 SCC 31, at para 17). The principle of proportionality is at the heart of any sentencing (see R. v. Nasogaluak, 2010 SCC 6, at para41). The Supreme Court of Canada tells us at para 42 of Nasogaluak that proportionality means a sentence must not exceed what is justand appropriate in light of the moral blameworthiness of the offender and the gravity of the offence. But a sentence is also a “form ofjudicial and social censure”.

A proportionate sentence may express, to some extent, society’s shared values and concerns. [17] A judge must weigh the objectives of sentencing that reflect the specific circumstances of the case. It is up to the sentencingjudge to decide which objective or objectives deserve the greatest weight. The importance given to mitigating or aggravating factorswill move the sentence along the scale of appropriate sentences for similar offences (see Nasogaluak, para 43 and 44). DISCUSSION [18] In my view Mr. Daniels can serve out a Conditional Sentence Order and would not be a danger to the community while doingso.

The reasons are: 1. Mr. Daniels has been on conditions for the last three and a half years and there have been no allegations of breaches of theseconditions; 2. His new career is in the lower mainland, far removed from the location of this offence. Exhibit 2 and the submissions of

Defence counsel have lead me to conclude that efforts of rehabilitation are exceptional circumstances to be considered by the Court; 3. The letters of reference from his friends and his employer (Exhibit 1). [ 19 ] What I have to consider now is whether I am satisfied that if Mr. Daniels serves his sentence in the community, such will be consistent with the fundamental purpose and principles of sentencing set out in subsection 718 - 718.2. [ 20 ] A Conditional Sentence Order of lengthy duration and onerous conditions will meet the sentencing objectives of denunciation and deterrence.

A Conditional Sentence Order will also assist Mr. Daniels achieve the other sentencing goal of rehabilitation. [ 21 ] For those reasons, I sentence Mr. Daniels to a 12 month Conditional Sentence Order. ___________________ R. W. Callan Provincial Court Judge Province Of British Columbia