R. v. Lunde Date:, 2012 BCPC 408

Citation: R. v. Lunde Date: 20120926 2012 BCPC 0408 File No: 56328-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DHARMA LUNDE EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: P. Whyte Counsel for the Defendant: R. Mansoori-Dara Place of Hearing: North Vancouver , B.C. Date of Judgment: September 26, 2012

[ 1 ] THE COURT: Dharma Lunde has pled guilty today to trafficking in marihuana. The offence arose December 9, 2010. The police received a tip that he was selling marihuana from behind the counter of a beer and wine store on Bowen Island. They went into the store on that day. They entered into a conversation with him. They made small talk about what to do on Bowen as they were posing as tourists.

They then asked, "Do you know where we could get some weed?" and he said he could accommodate them, and a transaction occurred where he sold just over 14 grams of marihuana for $140 to the undercover officers. [ 2 ] The information was sworn June 27, 2011. He was summonsed to court for August 10, 2011. There was a 16-month delay to trial, and an argument was made asking for a judicial stay of proceedings. I declined to grant that application. Nevertheless, that period of time has had a significant impact on Mr. Lunde.

Although it was not sufficient for me to grant a judicial stay of proceedings, it is certainly something I can take into account now that he has pled guilty and accepted responsibility for this offence. [ 3 ] Mr. Lunde is 39 years of age. He has no criminal history whatsoever. Most significantly in this matter, he suffers from MS.

As a result of the MS and other difficulties in his life, including this charge, he has been diagnosed with severe depression and is, at least as of the date of his affidavit in the delay matter, trying to deal with that by way of medication and is still going through an adjustment period, if I can call it that, to his medication for depression. [ 4 ] He lost his employment as a result of the charge. He has now found other employment. He will lose that employment if he is convicted. He has lost a longstanding relationship as a result of his criminal actions.

That ended sometime, I gather, over the late spring or summer of this year. [ 5 ] He has expressed sincere remorse in court. He has now entered a plea and accepted responsibility for what he has done. He recognizes that what he did for a profit motive was incredibly unwise. It has cost him dearly. He speaks about the fact that his family is disappointed in him. His friends are disappointed and surprised that he would engage in such behaviour. [ 6 ] He continues to reside on Bowen Island. It is a very small community.

I am going to assume that most people who are permanent residents there are aware of his difficulties with the law in this regard. [ 7 ] He has been compliant with his bail. That is not surprising given that he is a person of otherwise good character. [ 8 ] I accept that he has been specifically deterred and we will not see him before the courts again. The real question on this sentencing is whether or not a conditional discharge would meet the principles of sentencing and, in particular, general deterrence. [ 9 ] In my view, a discharge won't necessarily meet the principle of general deterrence; however, in Mr.

Lunde's circumstances, I am giving greater weight to his rehabilitation and reintegration into society. I am also taking into account that if he loses the employment he has, it will be unlikely he will find further employment in his community. He is dependent on his community. He is going to likely become more dependent on his friends and supports in the community as a result of his MS, and all in all, I think it would be a disproportionate response to cause him to lose his employment. He would probably end up receiving social assistance, and that is not in anyone's interest.

Neither is it in the court's or society's interest to do anything to Mr. Lunde which would aggravate or exacerbate a condition which is a very serious one to begin with. [ 10 ] I should also note that Mr. Lunde has been using marihuana to assist him with the symptomology he suffers with his MS. [ 11 ] It is an unfortunate circumstance in Canada now that people get such mixed messages about the use of marihuana. I have had young people come before me in these courts who were surprised that possession of marihuana was even illegal.

Certainly, it is a matter that might well be dealt with politically rather than having individual citizens such as Mr. Lunde coming before the court having committed what is treated by the Controlled Drugs and Substances Act as a very serious crime in a community that I expect accepts the simple possession and use of marihuana amongst its community members. I understand that something like 67 percent of Canadians are now firmly in favour of the legalization of marihuana. [ 12 ] Nevertheless, Mr. Lunde was trafficking marihuana. He certainly put his employment at risk. He put his employer at risk.

It is a matter that at this time must be dealt with by the courts. However, I am satisfied a conditional discharge would not be against the public interest and would certainly be in Mr. Lunde's interest, and I will grant him that. It will be for a period of 12 months. [ 13 ] There is little that Mr. Lunde needs to do by way of rehabilitation. He is already taking counselling.

He is attempting to get a medical exemption and probably a licence so that he can consume marihuana legally and provide his own source legally, and we can only encourage him to do so at this point. [ 14 ] The terms of the conditional discharge will be that you will keep the peace and be of good behaviour and appear before the court when required to do so by the court. [ 15 ] Mr. Lunde is not in a position where he can perform community work service because he finds it difficult, as he has just said, getting through the days he has at his own work. [ 16 ] He has already undertaken counselling.

He has access to counselling through the MS centre that he goes to and he is also seeing a medical practitioner with respect to his depression. I do not think he needs any other form of counselling from what I have heard. So those will be the terms. There will simply be a conditional discharge for a year with no terms other than that required by statute. [ 17 ] I would like to grant you an absolute discharge, but I cannot quite see my way clear to do that. [ 18 ] THE ACCUSED: Thank you, Your Honour.

[ 19 ] THE COURT: I order forfeiture of the items seized, and pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, crossbow, prohibited weapon, or restricted weapon - someday I will memorize this - imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substances, or all such things, and any related authorizations, licences, or registration certificates for a period of 10 years.

That is pursuant to s. 109 of the Criminal Code . [ 20 ] Do you have any such items to surrender? [ 21 ] THE ACCUSED: Chef's knives. [ 22 ] THE COURT: No, that does not count. [ 23 ] MR. MANSOORI-DARA: Just finally the matter of the victim fine surcharge, Your Honour. [ 24 ] THE COURT: I will waive it in Mr. Lunde's circumstances. [ 25 ] MR. WHYTE: Thank you, Your Honour. (REASONS CONCLUDED)