IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  These are my reasons on sentence in the matter of Michael Santos.  Mr. Santos pled guilty to possessing marihuana in an amount under three kilograms for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act.  The date of the offence was February 28th, 2013.  The marihuana was being grown in his family home in Lions Bay.

[2]           He entered his plea on April 22nd, 2014, which was the first day of his trial.  A presentence report was prepared for the sentencing hearing.  I understand there were several significant legal issues to be addressed at trial.  The plea arrangement entered into was at the 11th hour and was an apparent compromise for both the Crown and the defence.

[3]           A tip from a civilian resulted in a search warrant being executed.  Due to a short delay in responding to the door at 6:35 p.m., the police entered using a battering ram.  His wife and young children were traumatized by the forceful and sudden entry by the police.

[4]           The police located 414 plants in various stages of development, although almost half were seedlings.  The largest were 18 inches tall.  They also found harvested bud and shake.  It was not a sophisticated operation.  The risk posed by diversion of electricity of specialized lighting, heat, or fans was not present.

[5]           At the time of the offence, Mr. Santos was growing marihuana for his own medical purposes, but without a medical exemption.  Mr. Santos obtained a medical exemption to both possess and produce marihuana in August of 2013 which remains valid.  He does not wish the medical reason he consumes marihuana to be made public and his letter to the court has been sealed.  However, for the purposes of these reasons, it is necessary for me to address this issue.

[6]           He has a 50 percent chance that he will develop a life-threatening genetic disease.  He is now in the process of having that condition confirmed, but has believed he suffers from it due to ongoing symptomology.  Given his family history, he expects that the age of onset will be in the next 10 years and the decline will be very rapid.  He has avoided a final determination for psychological and emotional reasons.  He faces the prospect that his children may have inherited the same genetic disposition from him.

[7]           He believes that the use of marihuana may be prophylactic or may delay onset.  He also has arthritis and experiences stiff muscles, back pain, and insomnia.  Mr. Santos either consumes or applies a marihuana extract or oil which can only be made from the female plants and so he needed to produce many more plants than might otherwise be necessary for medical consumption in other forms.

[8]           The Crown argued that it was "unknown what kind of trafficking" Mr. Santos was involved in.  Mr. Santos acknowledged through his counsel that from time to time he would transport the marihuana and provided it without cost to others who consumed it for medical purposes which brings his conduct within the definition of "trafficking" in the CDSA.

[9]           The Crown pointed out that Mr. Santos' reported income was insufficient to meet the family's basic expenses given the amount of rent they paid for the home and suggested a negative inference could be drawn.  Mr. Santos explained that he and his wife have some savings they use to meet expenses and that there had been a tenant for some time that paid one-third of the rent.

[10]        There was also a suggestion by Crown that because the condition Mr. Santos may suffer from has not been confirmed, his claim that he uses marihuana to address that health concern is not sincere.  I find there is nothing in the evidence before me to suggest that his use was for any purpose other than a medical one.

[11]        As an aside, it has now been empirically established that there is efficacy to many homeopathic and naturopathic remedies which arises from the belief of the patient that they will provide relief.  Given what Mr. Santos knows about the disease he is predisposed to and the effect it has had on his family, I accept that his medical use was and is sincere.  Even if the only benefit the use of marihuana actually provides is hope, the emotional and, in turn, physical benefits could well be medically significant.

[12]        With all due respect, the submissions of the Crown pertaining to the issue of trafficking for profit were based on little more than innuendo.  I cannot find on the evidence that the trafficking element of the offence included providing marihuana for profit to others.  Mr. Santos does not admit this and the Crown did not seek to prove this as an aggravating factor.

[13]        Mr. Santos is 40 years of age and has no criminal history.  He works as an audio engineer and also does some video work.  He has recently started a power washing business to supplement his income.  He has been in a common law relationship for 20 years and he and his wife have two children, aged seven and eight.  Mr. Santos is the sole support for the family.  They live a modest and quiet life.

[14]        The house in which the family continues to reside is a rental premise.  The landlord was made aware of the execution of the warrant and the circumstances of the offence.  Mr. Santos had been very careful to ensure the property was not damaged in the course of growing the marihuana and has already addressed some minor repairs.  The landlord remains supportive of Mr. Santos and his family as tenants.  A letter of support was provided from the property manager.

[15]        According to a number of character letters filed, Mr. Santos is a respected and contributing member of his community.  He uses his skills on a volunteer basis to assist the community and community members.  He and his wife were involved in many activities and are particularly involved at the local school.  He is noted to be a dedicated family man and a trusted, reliable, and hard worker.

[16]        Mr. Santos holds ambivalent views about his offending conduct.  In my experience, ambivalence about the legalities of non-commercial or medical production, possession, or trafficking for medical purposes, simple possession, or the recreational consumption of marihuana is now widespread in Canadian society.  His conduct was not dangerous or antisocial and recent polls suggest that a majority of Canadians do not believe such conduct should be the subject of criminal sanctions.

[17]        In Mr. Santos' written statement to the court, he speaks about the stigma and shame he has experienced as a result of being arrested and charged for producing marihuana in his home.  Indeed, he well knew he was undertaking an illegal activity.  He knew he should obtain an exemption, but perceived the application process to be a cumbersome one and so did not pursue it.  He was concerned about the consequences of admitting his use of marihuana to the government given the uncertain future of the exemption program.  His wife did not approve of his production of marihuana in the family home.  He is remorseful for his conduct and understands he must face some consequences.

[18]        On the other hand, Mr. Santos views himself as a law-abiding citizen and a person of high moral integrity.  He does not believe he should have been or be "treated as a criminal" for growing plants.  He views the conduct of the police in executing a hard entry as inappropriate and unnecessary.  Despite the stigma and shame he reports experiencing, those in the community who know him and his family personally have remained supportive.

[19]        Mr. Santos is also very concerned about the effect a criminal conviction or even a conditional discharge will have on his ability to travel with his family or work abroad and particularly in the United States.  He is also concerned that his wife and children will pay the price in the long term for his lapse in judgment if his employment prospects are limited due to having a criminal record.  Mr. Santos also wrote about the toll the stress of the investigation and prosecution of this offence has taken on his and his family's life over the 18 months since the date of the offence.  He has also had to bear the cost of legal representation.

[20]        There is no doubt he has been specifically deterred from engaging in any illegal behaviour in the future no matter how inherently benign and victimless it may be.  If there are any victims of Mr. Santos' offending, they are his family.

[21]        The plea entered provides the court with the full range of sentencing options.  The Crown submits that a 12-month conditional sentence is appropriate.  They say that the offence is at the low end of the range of seriousness for the nature of the charge, but that the principle of general deterrence must be given significant weight.  Mr. Santos asks the court to impose an absolute discharge.

[22]        The Crown relied on R. v. Koenders, 2007 BCCA 378, which deals with the sentencing range for commercial production operations for profit.  At paragraph 22, the court noted that as commerciality increases, the seriousness of the offence increases and the penalty becomes more severe.  However, in cases involving production for personal use or solely for the medical use of others, a non-custodial sentence is often imposed.

[23]        Counsel for Mr. Santos provided the court with R. v. Lieph (July 17th, 1989) No. V00939, Victoria Registry, (B.C.C.A.); R. v. Czolowski (14 July 1998) No. 23347-01-D, Vancouver Registry (B.C.P.C.); R. v. Davis (September 15th, 1999) Vancouver Registry No. C40172-01-D, (B.C.P.C); R. v. Gionet (December 3rd, 1999) Surrey Registry No. 94505-01, (B.C.P.C.); R. v. Richardson (January 26, 2000) No. 33558, North Vancouver Registry, (B.C.P.C.); R. v. Slykerman (March 1st, 2000) No. 102370-01-T, Vancouver Registry, (B.C.P.C.); R. v. Smillie (May 8th, 2000) No. 27697-01, Maple Ridge Registry, (B.C.P.C.); R. v. Kruse (May 31st, 2000) Nakusp Registry No. 3189-C, (B.C.P.C.) R. v. Small (June 27th, 2000) No. CC991259, Vancouver Registry, (B.C.S.C.); R. v. Small (February 9th, 2001) 2001 BCCA 91 (CanLII), [2001] B.C.J. No. 248, (B.C.C.A.); R. v. Rayklin (September 21st, 2001) No. 26424 Campbell River Registry, (B.C.P.C.); R. v. Colosanti (April 15th, 2002) No. 30513 Maple Ridge Registry, (B.C.P.C.); R. v. Heinrichs (May 2nd, 2002) No. X23619-2, Duncan Registry, (B.C.S.C.); R. v. Winchester (June 25th, 2002) No. 43714, Chilliwack Registry, (B.C.S.C.); R. v. Lucas (July 25th, 2002) No. 113701-C, Victoria Registry, (B.C.P.C.); R. v. Lange (November 13th, 2002) Surrey Registry No. 126950-1, (B.C.P.C.); R. v. Hogan and Hogan, 2003 BCPC 543 (CanLII), 2003 BCPC 0543; R. v. Smith (July 2004) Victoria Provincial Court, Registry No. 118904 (BCPC); R. v. Evers, 2006 BCPC 263 (CanLII), 2006 BCPC 0263; R. v. Beren, and Swallow, (unreported) April 3rd, 2009, Victoria Registry, No. 131900, (B.C.S.C); R. v. Placek, 2012 BCSC 1660; R. v. Caine (unreported) June 2013, New West Supreme Court, No. X075642.

[24]        The facts of these cases vary widely.  The charges range from simple possession to possession for the purpose of trafficking and, of course, production in varying amounts and different levels of sophistication.  Some involve production for organizations often referred to as a "Compassion Clubs," which distribute the marihuana to persons who have medical exemptions or medical needs.  Some accused engaged in this conduct for profit.  Some, like the case at bar, involve people growing marihuana for their own personal medical use and/or for donation to others in need.

[25]        In cases where an absolute or conditional discharge was granted, the accused was not motivated by profit and the marihuana was for medical use.  In many cases, the accused pleaded guilty, was of good character, and without a criminal history.  Most of the offenders demonstrated an understanding of the importance of compliance with the law and were remorseful for having come to the decision to break the law.  Specific deterrence and rehabilitation was found to have been addressed by the process of investigation and prosecution.  The offenders and often their families had already suffered the adverse repercussions arising from involvement in the criminal justice system.  Most significantly, the moral culpability of the offenders was found to be very low.

[26]        Many of the decisions refer to the untenable and questionably constitutional state of the law and regulations over the past few decades regarding access to marihuana for medical use. 

[27]        When it becomes common for persons of good character to willingly and knowingly conduct themselves in violation of a law, which is widely seen to be unwarranted or unjust or unfair, this should cause those who enact our laws and who are tasked with enforcing or upholding the law to give serious consideration to the repeal or amendment of that law to bring it into accord with modern social values.

[28]        It has long been observed that when otherwise law-abiding members of the public demonstrate a blatant disregard for the law, that this leads to a broader failure by members of society to recognize the sanctity of our laws. 

[29]        As a judge tasked with imposing a proportionate and just penalty for such conduct, I must weigh all the principles of sentence.  It is clear that I must impose a sanction which will encourage respect for our laws and the rule of law.

[30]        I am troubled by what principles should guide me in determining the appropriate sanction when the current state of the law applicable to the offence in question appears to be creating a widespread diminishment of respect for the law.  I am mindful that the imposition of overly harsh sentences will lead to the same result.

[31]        I find that the offending conduct of Mr. Santos in producing his own marihuana for medical use to allow him to create a substance from it that is not available in a dispensary in circumstances where he was entitled to a medical exemption is similar in nature to the violation of a regulation.  I find his moral culpability to be very low.

[32]        I have considered the principles as set out in R. v. Fallofield with respect to whether a discharge is appropriate and, particularly, as that case was applied in the decisions mentioned above.  I find that the interests of Mr. Santos and his family outweigh the need for general deterrence.  I do not find it proportionate or just to leave Mr. Santos with a criminal conviction or a disposition which will hinder his ability to support his family or impact their ability as a family to travel.  To the contrary, I find that it would not be in the public interest to do so. 

[33]        Persons in a similar situation to that of Mr. Santos will know that if they choose to engage in production or possession of marihuana without an exemption, they will face the investigation of and prosecution for a criminal offence.  The prospect of being stigmatized in the eyes of their peers and being subject to the criminal process itself is of deterrent value, especially to persons of otherwise good character.  Their homes may be entered and searched.  They may be arrested and held in jail pending a bail hearing.  Their liberty will be impacted by terms of interim release.  There will be costs to retain counsel.  They will face the uncertainty of whether they will have a criminal conviction entered depending on the circumstances and the uncertainty of what penalty might ultimately be imposed.

[34]        If you will stand, Mr. Santos.

[35]        THE ACCUSED:  I will stand.

[36]        THE COURT:  In all the circumstances and considering the principles of sentence as set out in the Criminal Code and the Controlled Drugs and Substances Act, I find that an absolute discharge should be imposed.

[37]        MR. TOUSAW:  Thank you, Your Honour.

[38]        THE ACCUSED:  Thank you.

[39]        THE COURT:  Now, I think we have to deal with the issue of the victim fine surcharge.  I think it is $100.

[40]        MR. TOUSAW:  We can pay that downstairs.

[41]        THE COURT:  He does not need anything other than the statutory time to pay?

[42]        MR. TOUSAW:  The statutory time is?

[43]        THE CLERK:  Two months, Your Honour.

[44]        MR. TOUSAW:  Two months, no problem.

[45]        MR. WHYTE:  Your Honour, I believe there was a reference to s. 109, as well, of the Criminal Code with respect to a firearms prohibition.

[46]        THE COURT:  Is it mandatory on a discharge?

[47]        MR. WHYTE:  Your Honour, John Whyte, W-h-y-t-e, for the Federal Crown, recalling the Santos matter.  Both counsel have looked at s. 109 and it seems pretty clear that it is a mandatory order for 10 years.

[48]        THE COURT:  I take it he has got nothing to surrender.

[49]        MR. TOUSAW:  No, Your Honour.

[50]        THE COURT:  All right.  So there will be a prohibition pursuant to s. 109?

[51]        MR. WHYTE:  109.

[52]        THE COURT:  He is not to possess any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licences, and registration certificates for a period of 10 years.