R. v. Coffey, 2018 BCPC 386

Citation: R. v. Coffey 2018 BCPC 386 Date: 20181203 File No: 84711-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. PETER COFFEY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. SOLOMON Counsel for the Crown: M. Le Dressay Counsel for the Defendant: P. Derksen Place of Hearing: Abbotsford , B.C. Date of Hearing: December 3, 2018 Date of Judgment: December 3, 2018 [ 1 ] THE COURT: These are my oral reasons for sentence in the case of R. v. Coffey , court file number 84711. I reserve the right to edit this decision for grammar and clarity in the event these reasons are transcribed.

[ 2 ] The accused was convicted after trial of the offences of production and possession for the purpose of trafficking of marihuana in relation to a 4200-plant grow operation. The reasons for decision on the trial are reported and indexed as 2017 BCPC 449 . These reasons should be read in conjunction with those reasons. [ 3 ] At trial, I found the circumstantial evidence against the accused to be overwhelming. I also disbelieved his evidence. I found that the accused was actively involved and participated in the production of the marihuana plants found on the acreage where they were being grown.

The Hydro accounts were in his name. The accounts were paid through his corporation at times, and there was a web of documentary evidence that led to only one rational conclusion, that the accused was a principal of the operation or played a significant role in aiding and abetting the success of the operation. The production of these marihuana plants was for the purpose of trafficking. [ 4 ] The position of the Crown is that a three to four-year jail sentence is appropriate.

Defence counsel takes the position that either a fine or a short jail sentence would meet the principles of sentencing. [ 5 ] In terms of some further background regarding the circumstances, on January 13, 2016 the RCMP executed a search warrant at the accused's residence located at 41351 Morton Road, Deroche, B.C. This is a seven-acre rural property.

As indicated earlier, in the course of this investigation the police located and seized approximately 4200 marihuana plants in three stages of growth, in nine separate growing rooms with related paraphernalia, including high pressure sodium lights, metal haloid lights and nutrients. [ 6 ] The evidence from the expert was not disputed, that this was a commercial grow operation for profit and not one for personal use.

The potential revenue from this grow operation was significant. [ 7 ] The evidence connecting the accused as a principal or party to the offences was circumstantial and for the most part related to a large volume of documents. At paragraphs 26 to 84 of the reasons for decision, the extensive nature of the documentary evidence is set out and discussed. Mr. Coffey did have a medical marihuana licence to produce a small number of plants, along with two other individuals who also had licences to produce a small number of plants on this property.

The combined MMAR licences permitted approximately 500 plants to be grown. As indicated above, over 4200 plants were found on the property. As a result, the parties involved were overgrowing the allotted amount by a significant amount. [ 8 ] One of the documents found indicates a harvest at some point of 44.5 pounds that brought in revenue of $93,600. The document explains how that revenue was distributed to various parties.

I set out that finding at paragraphs 54 to 57 of my judgment. [ 9 ] At paragraphs 87 and following I set out the circumstantial evidence tying the accused to the illegal production and the offences and also set out reasons why I disbelieved his evidence at trial.

I do not intend to review the extent of that circumstantial evidence but I found the circumstantial evidence against him to be overwhelming. [ 10 ] At paragraph 94 I held as follows: The evidence of the accused essentially is that he had no knowledge of anything illegal happening on this grow operation, that his access was extremely limited, he was not in possession of any keys or access cards and his attendance in the compound where the grow operation was located required an escort. I do not accept this evidence. In my view, it is completely unreasonable that a person in Mr.

Peter Coffey's position of being the Hydro subscriber, being connected with the property since 2009, having his own MMAR licence to produce marihuana in the compound, being the brother of the owner of the property and being actively involved in the application for an MMPR licence would somehow be restricted on this property. It makes no sense and accordingly I reject his evidence for all the reasons stated above. Principles of Sentencing : [ 11 ]

Section 718 of the Criminal Code states as follows: The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community. [ 12 ]

Section 718.1 states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 13 ] Other sentencing principles are set out in s. 718.2. This

Section states: 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 similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. That applies in this case. Crown Counsel's Submissions: [14] Crown Counsel has pointed to a number of cases that indicate a range of 12 months to four years for large marihuana productionsituations. Crown Counsel emphasizes in their submissions that this case is different and unique in several ways from other cases reliedupon:

(1) The sheer size and sophistication of this grow operation. This grow operation was set up on a large acreage with four custom-built steel structures to accommodate the number of plants intended to be produced. There is large fencing with barbed wire to protectthe security of the premises. There were charts to keep track of the work needed to be done to maintain the grow operation. There werelarge nutrient containers. There was a sophisticated electrical system and an obvious large investment in infrastructure.

(2) The accused has shown an utter lack of remorse and seems to view the production of marihuana as something he is entitled todo. He has maintained his innocence and this is evident by the Presentence Report. The accused does not think he did anything wrong. In particular, at page 4 at the top paragraph of the Presentence Report the writer states: As was presented in court, Peter feels that there was a great misunderstanding. He continues to state that he was only in possession ofmarihuana for his personal use and that he was not responsible for the other significant amounts allegedly owned by the other parties.

(3) The accused purposely set out in the most cynical way to abuse the medical marihuana system and this is really a breach oftrust. These type of medicinal marihuana cases where people overgrow the amount allotted are almost impossible to detect. Criminalslike the accused can hide behind their licences. Since this is a breach of trust situation, one has to look at general deterrence as animportant sentencing factor. The government placed trust in citizens to comply with their licences, just as the state puts trust on citizensto declare their lawful income.

Crown counsel submits that a message from the court must be sent that this type of behaviour will not betolerated. This is an abuse of the medical marihuana regulations. [15] Crown Counsel relies on a number of cases. I should state firstly, Crown relies on the Cannabis Act, which came into law onOctober 17, 2018. At s. 7 the purpose of the Act is set out. It states: The purpose of this Act is to protect public health and public safety and, in particular, to (

a) protect the health of young persons by restricting their access to cannabis; (

b) protect young persons and others from inducements to use cannabis; (

c) provide for the licit production of cannabis to reduce illicit activities in relation to cannabis; (

d) deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures; (

e) reduce the burden on the criminal justice system in relation to cannabis; (

f) provide access to a quality-controlled supply of cannabis; and (

g) enhance public awareness of the health risks associated with cannabis use. [16] Crown Counsel points out that the type of offences for which Mr. Coffey has been found guilty herein are still criminal offencesunder the Cannabis Act. The only difference is for the offence of possession for the purpose of trafficking, the maximum sentence hasbeen reduced from life to 14 years. The offence for production remains part of the Cannabis Act and the maximum sentence remains at14 years. [17] Tab 1 of Crown Counsel's casebook is R. v. McGee, [2016] 2016 B.C.J. No. 2433.

In that decision at paragraphs 80-83 thecourt held: I am also not persuaded that the licensed growing of marihuana for medical purposes, the current lack of enforcement of its sale to thepublic in some cities, or its legalization in other jurisdictions, necessarily indicate, in themselves, that the previous emphasis on deterringand denouncing grow operations does not reflect current societal attitudes. Madam Justice Warren dealt with this issue very helpfully in R. v. Hofer, 2016 BCSC 1442 , at paras. 56 and 57: [56] Counsel for Mr. Hofer observed that the law concerning marihuana is in a state of flux in Canada.

I accept that in recent years therehas been a softening of attitudes concerning personal marihuana use, but that does not equate to a softening of attitudes about large-scaleillicit production.

Mr. McGee's actions in committing the offence also have a meaningful degree of moral blameworthiness. One cannot carry on a growoperation as an isolated, impulsive act. As Madam Justice Ryan put it aptly in Koenders, at para. 21: The person who becomes involved in the commercial production of marihuana, solely for profit, makes a deliberate decision to operateoutside the laws of this country. Unlike most other offences, the production of marihuana is not situational: no one can operate a growoperation without a large amount of planning, deliberation and organization.

And, while there is no reason to doubt that Mr. McGee engaged in this offence to replace income from his legitimate employmentfollowing an injury, not as a free-standing illicitly profitable career choice, I return to the comments that the Crown has cited from R. v.Budd, to the effect that it is the pursuit of easy money in itself, by running these illegal operations, that calls for deterrence, not theultimate underlying purpose of the money earned.

I also have in mind that his role as a principal of this operation carries with it a greaterlevel of blameworthiness than a less centrally involved participant. [18] In the case of R. v. Hill 2007 BCCA 309 at paragraph 22 the court held: I do not regard Sopinka J.’s statement in R. v. Kokesch as a rule of law that offences involving marihuana must always be treated lessseriously than offences involving hard drugs. Rather, the determination of a fit sentence is a subjective exercise that will depend uponthe particular circumstances of the case under consideration.

The sentencing judge referred to a number of cases, some involvingmarihuana, some other drugs. She drew from these cases that denunciation and general and specific deterrence weigh heavily in thesentencing of non-addicted offenders engaged in the illegal drug trade purely for profit. She emphasized the harm caused to society bydrug trafficking generally and stressed that this was an ongoing, sophisticated, mid to high level trafficking operation. In my view, shedid not err in concluding that the nature of the drug involved was of secondary importance in these circumstances. I echo those comments.

In my view, they apply to the case at bar. [19] In the case of R. v. Sydel 2007 BCPC 486, that concerned tax evasion, at paragraphs 22, 23 and 39, the court held: But where the need for general deterrence is particularly pressing, incarceration will normally be the preferable option. This wasconfirmed in the case of R. v. Wismayer, (ON CA), [1997] 33 O.R. (3d) 225 (the Ontario Court of Appeal). With respect to denunciation, that aspect of criminal sanctions has been described as the communication of society's condemnation of theoffender's conduct. The case of R. v.

C.A.M., (SCC), [1996] 1 S.C.R. 500, paragraph 81 had this to say: In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should bepunished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawtonstated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: 'society, through the courts, must show its abhorrence of particular types ofcrime, and the only way in which the courts can show this is by the sentences they pass'.

It seems to me that this type of crime, and this type of individual, as Dr. Sydel is, is precisely the type of individual and crime thatsociety must, when they look at, say, "How can somebody go for so many years earning so much money and not pay a dime in taxes, viathe process of delay and then bankruptcy, while using every free facility that Canada has to offer?" The people have to look at that andsay that the only appropriate punishment for somebody like this is a jail sentence.

What deterrent would there be for anyone else to earneither smaller amounts of money, or larger amounts of money, and just sock it away, or spend it all, delay as long as possible, getconvicted, go bankrupt, and then essentially continue on with their life as if this is all perfectly okay? In my view, this last paragraph is also applicable to cases such as the one before me. [20] Crown Counsel also relied on another case that does not specifically address a marihuana grow operation, but the principles ofsentencing are important. This is the case of R. v. Wang 2015 BCPC 302.

At paragraph 62-63 the court held: The seriousness of tax evasion and its impact is reflected in the comments of Mr. Justice Cory in R. v. Knox Contracting, (SCC), [1990] 2 S.C.R. 338 (S.C.C.): It is fitting and appropriate that the s. 239 offences be considered as criminal law. The Income Tax Act is a major source of funds for thefederal government. Its provisions are applicable to most adult Canadians. The vast majority pay their income tax by way of payrolldeduction with little or no opportunity for evasion or misstatement.

Those who do evade the payment of income tax not only cheat theState of what is owing to it, but inevitably increase the burden placed upon the honest taxpayers. It is ironic that those who evadepayment of taxes think nothing of availing themselves of the innumerable services which the State provides by means of taxes collectedfrom others. The entire system of levying and collecting income tax is dependent upon the integrity of the taxpayer in reporting and assessingincome. If the system is to work, the returns must be honestly completed.

All taxpayers have the right to know that it is a criminalviolation to commit any of the offences described in s. 239. The Act imposes a public duty. A breach of that fundamentally importantpublic duty should constitute a criminal offence. In

summary, I find the gravity of the offences committed by Mr. Wang to be serious. His actions served to undermine Canada'simmigration process with the result that the public's confidence in the process has been damaged. Further, he took advantage of the self-reporting nature of the tax system thus depriving the public purse of funds and increasing the burden to all. I also find Mr. Wang's moralculpability to be high. His offences demonstrated forethought, planning, and with significant complexity and the only motive beingprofit. [21] I find a similar situation applies in the case at bar. Mr.

Coffey has undermined the medical marihuana system by overgrowingthe amount allotted to him. He took advantage of the system and that allowed him to avoid detection until by chance he was found outand a warrant was obtained.

[ 22 ] In the case of R. v. Neary 2017 SKCA 29 , the Saskatchewan Court of Appeal said the following at paragraph 44: Mr. Neary also argues that his offences are less serious on the basis that the government has proposed in the future to fulfill its election promise to make simple possession of marijuana legal. He asks the Court to place less weight on the principles of denunciation and deterrence mandated by the Act. Such an argument cannot succeed.

This Court cannot give less effect to the existing law because of the possibility or even the probability of a future law that has been promised but which is not law at the moment. This Court is bound to apply the law as it stands at the present time and, in any event, the government has not proposed the decriminalization of trafficking in marijuana. [ 23 ] To reiterate what was said earlier, the new law is now in effect and production and trafficking are not decriminalized, they are regulated. The offences for which Mr.

Coffey has been convicted would still be offences and be treated the same way under the new Cannabis Act . [ 24 ] Based on those cases and the principles of sentencing as indicated, Crown seeks a sentence of three to four years' jail. Defence Submission : [ 25 ] The defence submission is that a substantial fine or a short jail sentence is appropriate, taking into consideration the circumstances of the offence and the offender and addresses all of the principles of sentencing. Defence counsel points out several mitigating and other circumstances for the court to take into consideration:

(1) Over the last few years there has been a significant evolution on social mores surrounding medical and recreational marihuana use. This has culminated in the passing and coming into force of the Cannabis Act in October 2018. The Cannabis Act has created a regulatory and licensing regime for the lawful production of marihuana. Also, the maximum penalty for possession for the purpose of trafficking marihuana has been reduced from life to 14 years.

(2) The accused was hopeful of being a party to a group of individuals seeking to obtain a lawful production licence. Their application was rejected in 2014 but there were ongoing efforts to try to remedy the deficiencies in their application. This is supported by the documentary evidence filed in this case.

(3) The accused had a lawful licence to produce marihuana for personal use, albeit for a small number of plants and he is, he was and he continues to be a medical marihuana user for health issues.

(4) This grow-op was secure and safe. It did not pose a risk to the public. There were no weapons found or booby traps set up.

(5) There were no large amounts of cash found and no indication of a lavish lifestyle suggesting a profitable enterprise.

(6) There was no theft of electricity.

(7) The accused's record is limited and he has lived mostly a productive, hardworking type of life.

(8) The accused cares for his ill spouse, and there is a letter from his spouse that I will refer to momentarily. [ 26 ] Before I do that, I should note that Crown is alleging a record. I failed to mention that. That is set out in the Presentence Report at page 3. The record consists of a 1986 conviction for driving with more than 80 milligrams of alcohol in blood and obstructing a peace officer. He received a $400 fine. Also, December 10, 1986 driving while disqualified. He received a $500 fine in default 14 days. On July 5, 2013 at Vancouver a conviction for possession of proceeds of property obtained by crime.

He received a two-year sentence and a mandatory firearm prohibition under s. 109. [ 27 ] The reference letters on behalf of Mr. Coffey, including one from his spouse, have been filed collectively as Exhibit 3. His spouse's name is Tracey Pritchard. She describes herself as Mr. Coffey's fiancé. They have been together for almost six years. They live together on the property in question in Deroche, B.C. She relies on Mr. Coffey for her daily needs.

She has health issues including fibromyalgia, chronic migraines, depression, thyroid disorder and a rare blood pressure disorder not pinpointed but causes fainting, seizures and one occasion cardiac arrest. She has many doctor and specialist appointments and tests every month. She relies on Mr. Coffey to take her to appointments, and he has renewed his CPR and first aid certificate. [ 28 ] She further states that Mr. Coffey is now the only one who is available to get her to her appointments as her mother is having her own health issues. Without Mr.

Coffey around she is at high risk for seizures and cardiac arrest without immediate assistance. She describes Mr. Coffey as patient, generous, helpful, hard-working and loveable. He attends mass every Sunday and is a very spiritual person. He volunteers regularly with his church. He is close with his family. He is a great father to his children and he often supports them even though they have a limited income. [ 29 ] I also have a letter from Ms. Pritchard's mother who also confirms what Ms. Pritchard says in her letter. She is thankful for Mr.

Coffey being in her daughter's life and it is indicated that she believes Mr. Coffey has saved her daughter's life on many occasions. She has also relied heavily on Mr. Coffey for support and assistance in her life. She describes Mr. Coffey as an extremely kind, caring and peace-loving person. He is a generous person. She describes Mr. Coffey as proud of his Métis heritage and that he has recently had his status confirmed and documentation is in progress. She describes Mr. Coffey further as a diligent and committed family man. He is compassionate, considerate, generous and loving.

He is respected and supported fully by his family and his church. [ 30 ] Defence counsel also relies on Gladue factors that exist in this case. As indicated earlier, this is something that is required to be taken into consideration pursuant to s. 718.2 (

e) of the Criminal Code . The circumstances of Mr. Coffey are set out in a Gladue report that has been filed as Exhibit 1 on this hearing. [ 31 ] The first paragraph on page 2 states under Personal History and Family Relationships:

Mr. Peter Coffey, age 52, the subject of this report, was born 4 January 1966 in Duluth, Minnesota to Mrs. Mary Coffey Mae Anderson, a woman of non-Aboriginal lineage, and the late Mr. Donald Coffey, a man of mixed Assiniboine, Fort Belknap First Nation and Métis descent. In 1971 the family relocated to the Shoal River 65A Reserve outside of Pelican Rapids, Manitoba. After a few years, his parents purchased a farm in the nearby rural community of Ethelberg, Manitoba where Peter and his seven siblings spent their formative years. Mr. Coffey described his upbringing as idyllic, free of any form of abuse.

His father was an educator and his mother was a registered nurse and homemaker. [ 32 ] Mr. Coffey left school at Grade 11 and since leaving school has worked at numerous jobs. He is also the father of four children from a previous relationship and the father of one further child from a subsequent relationship, not with Ms. Pritchard. [ 33 ] At page 8 of the report, starting in the middle of the page, the following is stated: As observed by his mother, Peter remains an intergenerational survivor of the imposition of the residential school system and other discriminatory policies of U.S. and Canadian governments.

Peter and his family have been indelibly impacted by Canadian governments' policies of colonization as illustrated by the disenfranchisement of the Métis people from their traditional territory and he continues to manifest this legacy as reflected in terms of his familial fragmentation and disintegration, social isolation and maladaptive interpersonal communication issues which continue to current date.

The Assembly of First Nations has causally linked the levels of violence and abuse within Aboriginal communities as being both the intent and purpose of the Indian residential school system and being the disruption of Aboriginal peoples. Leaders pointed to the resulting impact on their economy, culture and overall health, with Canadian governments' recognition, apology and attempt at reparations for these actions as a positive sign of the path of respect and healing which was needed. On April 14, 2016 the Supreme Court of Canada's landmark ruling in Daniels v.

Canada reiterated the government of Canada's long ignored fiduciary duty to Metis and non-status Indians who had been excluded from the Indian Act and left in a "jurisdictional wasteland" without access to essential programs and services, as was written by Supreme Court Justice Rosalie Abella, "As the curtain opens wider and wider on the history of Canada's relationship with its Indigenous peoples, inequities are increasingly revealed and remedies sought. This case represents another

chapter in the pursuit of reconciliation and redress in that relationship." The final report of the Truth and Reconciliation Commission of Canada 2015 described a series of steps taken by the Canadian government including the banning of cultural practices and confiscation of cultural treasures, the imposition of Band Council systems with no powers or resources and the residential school system created with the intention of assimilation of Indigenous peoples in order to destroy cultural identity and remove resources.

"These measures were part of a coherent policy to eliminate Aboriginal people as distinct peoples and to assimilate them into the Canadian mainstream against their will." The Canadian government pursued this policy of cultural genocide because it wished to divest itself of its legal and financial obligations to Aboriginal people and gain control of their lands and resources. If every Aboriginal person had been "absorbed into the body politic" there would be no reserves, no treaties and no Aboriginal rights. [ 34 ] Under

Summary and Options it is further stated: Peter is a 52-year-old man of blended Assiniboine and First Nation and Métis lineage. Peter has a limited criminal history with significant gaps between offending during which he reportedly led a prosocial and productive lifestyle. Peter expressed a willingness to address the underlying factors that have contributed to the matters before the court by participating with Indigenous spirituality-based and mainstream clinical supports. Prior to the imposition of sentence, Peter self-referred to community-based psychological counselling services.

A number of adverse factors that affect Aboriginals in general are present in Peter Coffey's personal life, including multigenerational family fragmentation, dislocation and breakdown, intergenerational effects flowing from colonization, enfranchisement and the Indian residential school system reported, forced relocation of the Métis/Assiniboine community with loss of land base and subsistence, dislocation from the Indigenous communities and traditional family supports has resulted in a loss of cultural identity and connection to the Métis/Assiniboine communities, loss of language, values, culture ancestral knowledge and traditional family and community support mechanisms.

The report writer also listed a number of resources that are available in the community or through Corrections. [ 35 ] Defence counsel also relied on a number of cases that set out a lower range of sentencing for these type of offences and also assisted the court with some comments from other courts about the impact of the change in social mores with respect to the approach to marihuana. Clearly, we have moved from a criminalization focused regime to more of a regulatory focused regime. [ 36 ] I have also had the benefit of a Presentence Report. I have referred to it earlier with respect to the issue of remorse.

Also, I would like to refer to page 4, the second paragraph under

Summary and Proposed Interventions, where the writer stated: Before the court is Peter Gerard Coffey, a man of 52 years of age currently residing with his common-law partner of four years in the town of Deroche, B.C. He is the father of four children but only has regular contact with one. (I think that is an error, just as an aside, in that he has five children in total.) Peter is currently employed on a part-time basis as a manager of Mountaintop Production Consultants and hopes to continue following his sentence.

Peter has a limited criminal history, the most concerning of which may be the possession of proceeds of crime which he was sentenced for in 2013. Peter states he is willing to accept any sanctions deemed necessary by the court, but also adds his offence was a misunderstanding of which marihuana plants were his and which were owned by other parties. While under supervision by Abbotsford Community Corrections while the matter has been before the court, Peter has reported as directed and complied with conditions imposed on him.

I also take into consideration that he has been on conditions for two years and has been reporting. [ 37 ] I also take into consideration Immigration matters. It was pointed out to me that Mr. Coffey is a permanent resident of Canada. He is already subject to a deportation order because of his previous conviction, however, I am told that Immigration has not moved against him and there is concern that this case and the sentence imposed in this case might tip the balance. [ 38 ] Mr. Coffey appealed his previous conviction for possession of property obtained by crime which resulted in a two year sentence.

He sought to withdraw his guilty plea. The appeal was dismissed and is reported at 2017 BCCA 359 . Accordingly, regardless of what happens here today, because Mr. Coffey is already a recipient of a two-year sentence, he is subject to deportation under the Immigration and Refugee Protection Act without the right of an appeal, if Immigration authorities seek to move against him. Analysis [ 39 ] In my view, denunciation and deterrence, both general and specific, are of primary importance in sentencing in this case. The accused has a high moral culpability for the offences he has been convicted of.

Although Canada has moved towards a regulatory system governing the legal production and distribution of marihuana, the Cannabis Act continues to make it illegal to produce and distribute marihuana without a licence. The objectives surrounding the Cannabis Act are clearly set out in s. 7 of the Act . Those objectives, as indicated earlier, are to in part: deter illicit activities in relation to cannabis through appropriate sanctions and enforcement measures And provide for the licit production of cannabis to reduce illicit activities in relation to cannabis.

In short, the government is trying to get illegal money and money laundering and all the problems that that causes out of the system, to remove this source of revenue from those wishing to participate in criminal activity. [ 40 ] I agree with Crown that using a personal production licence that was given for medical marihuana purposes as a shield to avoid detection of a larger enterprise and overgrowing a licence is a breach of trust and is damaging to all lawful medicinal marihuana producers who strictly comply with their licences so they can have a source of medicine for their illnesses. [ 41 ] However, I also recognize the personal circumstances of this accused.

He has a limited though serious criminal record. He is of Aboriginal heritage and Gladue factors apply and have been specifically identified in the Gladue report. Also, I take into consideration that Mr. Coffey is a permanent resident in Canada and this decision might impact whether Canada Immigration will move against him.

I also take into consideration that he is a respected member of the community to some extent, and others are highly dependent upon him. [ 42 ] However, when I consider all of the circumstances of the offender and the offences, and take into consideration the principles of sentencing, I cannot accept the submission of the defence that a fine or a minor jail sentence is appropriate in this case. The offences are serious, the moral culpability is high and the sentence that must be imposed must be one greater than proposed by defence counsel. [ 43 ] Mr. Coffey, would you please stand.

I am sentencing you to 12 months' jail. There will be a victim fine surcharge. You will have two months to pay upon your release from custody. That applies to both counts, these will be concurrent sentences. [ 44 ] There should be ancillary orders, a lifetime prohibition on possession of weapons, s. 109, on both counts. DNA order? [ 45 ] MR. LE DRESSAY: Forfeiture orders. [ 46 ] THE COURT: Forfeiture order. [ 47 ] MR.

LE DRESSAY: It looks like the only items of substance that were seized other than documentation and the marihuana that was destroyed was a Samsung tablet from building number 1 -- [ 48 ] THE COURT: Well, I think counsel better prepare -- there are a lot of personal documents and I am not sure it would be appropriate to order destruction of personal records unless -- what I will do is I will give counsel an opportunity to exchange correspondence as to what would be appropriate for forfeiture, and if they cannot agree I will give an opportunity to provide written submissions on the issue with a copy of the proposed forfeiture order and I will make the order. [PROCEEDINGS] [ 49 ] THE COURT: Both offences are secondary designated offences.

After considering the factors set out in s. 487.051(3), I am satisfied that it is in the best interests of the administration of justice to make an order in Form 5.04 authorizing the taking of samples of bodily substances from you for the purpose of registration in the DNA National Databank. The samples will be taken from you while you are in jail and you must submit to the taking of the samples. (REASONS FOR SENTENCE CONCLUDED)