R. v. McPherson Date:, 2011 BCPC 482

Citation: R. v. McPherson Date: 20110520 2011 BCPC 0482 File No: 70336-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. HOWARD EARL McPHERSON REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C.J. ROUNTHWAITE Counsel for the Crown: R. Randhawa Counsel for the Accused: R. Dick Place of Hearing: Abbotsford , B.C. Date of Hearing: January 5, 6, March 10, 2011 Date of Sentence: May 20, 2011

[1] THE COURT: Mr. McPherson is before the court having pled guilty to the charge of production of marihuana. He, I believe,is in the range of 55 years old, and this is his first conviction. [2] Police found 673 plants growing in the McPherson basement. What makes this case, in my view, unique is the reason Mr.McPherson was growing the marihuana. His medical condition is fully documented in the Pre-Sentence Report at page 3. Due tonumerous motor-vehicle accidents, Mr. McPherson has chronic pain as a result of injuries to his ankle and his back.

He provided lettersfrom a law firm regarding a motor-vehicle accident November 2005. He currently attends one doctor for his ankle, another doctor forspinal injuries, a pain specialist at the pain clinic, as well as a psychiatrist. Mr. McPherson was growing this marihuana in order to try toobtain some pain relief for both himself and his wife. [3] I should also say that he was growing more marihuana than he needed, because there was an expense in setting up the growoperation, and it was his hope to sell some of the marihuana to the Compassion Club to pay for the cost of setting up the operation.

There is no evidence that there had been more than one crop or any profits realized from this grow operation, and I certainly take thatinto account in terms of sentencing. [4] According to defence, at the time back in 2009, it was very difficult for people to get medical marihuana licences. Backseveral years ago, doctors were reluctant to provide people with the necessary letters to obtain the government certificate. That situationhas changed, and both Mr. McPherson, as well as his wife, have now obtained certificates for growing and consumption of marihuana.

Iam told their certificates were backdated to early 2010. Unfortunately for them, this offence occurred some ten months earlier, in 2009,so the certificate making what he was doing now legal did not in fact apply back then. Obviously it is acknowledged that he wasgrowing more than he is now entitled to. Together, these people are entitled to grow something in the range of 250 plants, whereas thiswas approximately 600.

But it certainly is a unique circumstance, in my view, that the reason for the marihuana grow operation was forpain relief and that this couple now are legally entitled to indeed do that very thing. [5] Notwithstanding the very positive Pre-Sentence Report, as well as the rather unique circumstances of this accused, Crown isstill seeking what I would consider a run-of-the-mill sentence, which is normally applied to people who do not have these medicalcircumstances and who are growing purely for profit or for greed.

Crown is seeking one year imprisonment, although is not opposed to aconditional sentence for one year. [6] Defence counsel is asking the court to grant a conditional discharge; not an absolute discharge, because of the number ofplants, but rather a conditional discharge, noting that there were more plants being grown than the number he is now legally entitled. [7] Defence counsel has provided me with two cases which support the proposition that in unique circumstances such as this,discharges, whether it is absolute or conditional, are indeed available and have been granted by higher courts.

I note that production ofmarihuana does come within the ambit of a discharge in that the maximum sentence for production of marihuana is seven years, so adischarge is certainly available. [8] I will start off with the decision of the Court of Appeal given February the 9th, 2001, R. v. William Small

(2001) BCCA 91. Mr. Small, I believe, was growing considerably more plants. I cannot find the specific amount, but to my recollection, it was a largernumber of plants, and was growing actually to sell to the Compassion Club, not for his own medical needs. He did stand to receive aprofit from doing so. Of note for Mr. Small, this was his second offence for production of marihuana. In the Court of Appeal decisionthey refer to him receiving an absolute discharge for his first offence. [9] The Court of Appeal, after reviewing the case of R. v.

Fallofield (1973) (BC CA), 13 CCC (2d) 450, as wellas general sentencing principles, lowered the sentence from a fine to a conditional discharge for Mr. Small's second offence. I will quotefrom paragraphs 5 and 6, at page 7, of the Small decision.

This deals with the well-known principles that in order to grant a discharge thecourt has to consider two things; number 1, whether it is in the best interests of the accused, and secondly, whether it is not contrary tothe interests of the community. [10] Paragraph 5, "Generally, the first condition," and I will pause for a moment and say that is whether it is in the best interests ofthe accused: ... would presuppose that the accused is a person of good character without previous conviction, that it is not necessary to enter aconviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against himmay have significant adverse repercussions. [11] I am more than satisfied that Mr.

McPherson, in this case, meets the necessary groundwork for me to find that it would clearlybe in his best interest to be granted a discharge. He is in his mid-50's, has no previous criminal convictions, he was growing themarihuana for his own pain relief, and he is now legally entitled to do so, as recognized by government certificate.

I have no reasonwhatsoever for believing that he will be back before the court for any offences, and certainly not for this offence. [12] Going on to paragraph 6 in the context of the second condition, the public interest in the deterrence of others: While it must be given due weight, it does not preclude the judicious use of the discharge provisions.

In this case, I am satisfied that the circumstances are sufficiently unique that consideration of deterrence of others is not appropriate, andthat it would not be contrary to the interests of the community in granting this accused a discharge. [13] Accordingly, I do so. It is, quite frankly, tempting to grant him an absolute discharge. He has, since the date of this offence,done everything that he needs to do to ensure that he is not before the court.

He has continued to use traditional medicine, he hasobtained his certificate to legalize his growing and use of marihuana, and he has also dealt with other issues that he has had along theway. He, himself, is seeing a psychiatrist and he is going to AA to deal with subsequent alcohol use.

[ 14 ] Just as an aside, I would hope that this matter was not specifically brought before me, but I have some familiarity with pain and the depression that can come from pain. My heart goes out to both of you, quite frankly. As your lawyer has said, you recognize everything that has happened along the way, including the recent overuse of alcohol, all of that is a learning experience. Hopefully, it makes you realize that there is help out there and that you reach out for that help. [ 15 ] In any event, counsel is not seeking an absolute discharge.

I suppose in recognition that there was a greater number of plants being grown than is now legally authorized, so I will make this a conditional discharge. [ 16 ] However, I did note in the Small decision that really the terms imposed by way of a conditional discharge were very few, and I think that is appropriate in this case as well. [ 17 ] So I am going to grant you a discharge, Mr. McPherson that is conditional on you entering into probation for a period of six months. Terms; keep the peace and be of good behaviour and report to court when required to do so.

So no new trouble. [ 18 ] You are to provide your residential address to the court registry, maintain that address and do not change it without first notifying the court registry of your new address. So we have to know where you are living. [ 19 ] I do not see any need for a reporting term or a counselling term. He has got lots of doctors and lots of support in the community, so I do not think he needs the assistance of Probation in order to monitor any of those things. [ 20 ] Pursuant to s. 109(1) (

c) I do make the mandatory ten-year prohibition order. I prohibit you from possessing any of those items named in that

section for a period of ten years. They include firearms, ammunition, prohibited weapon, explosive substances and those sorts of things. So you are not to possess them for ten years. I am told you do not have any such items in your possession, so I will give you until six o'clock this evening in order to deliver up any such items in your possession to the Abbotsford Police Department. [ 21 ] I will make an order of forfeiture of the grow equipment. I am told you now have what you need for your authorized growing, so you are consenting to that.

Personal documentation and anything that is not grow equipment, should be returned to you. [ 22 ] I am not going to order forfeiture of the cash, and that is based on Crown indicating that there was no evidence of this being an ongoing operation, and you are telling me that that money was actually your wife's money and it was possessed legally. [ 23 ] I also, given the very unique circumstances of this offence, will not order that you provide a sample of your DNA. I am satisfied that your privacy interests outweigh the interests of justice in terms of obtaining the sample.

These really are unique circumstances and there is no reason whatsoever to believe that you will be back in court or that a sample of your DNA will ever be of use, so I will not order that. C.J. ROUNTHWAITE Provincial Court Judge