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The Toronto Star

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Targeting Mrs. B

Saturday, October 29, 2011

Kirk Tousaw

Raffi Anderian: Marijuana William Tell
Raffi Anderian/Toronto Star

The federal government claims that its omnibus crime law, and
particularly the mandatory sentences imposed on drug crimes, will target
serious organized criminals. This is hogwash; the law will create all
manner of injustices. Here's one example.

In mid-September I represented a 67-year-old grandmother of four in a
B.C. Provincial Court sentencing hearing. My client, call her Mrs. B,
had pled guilty to producing marijuana for her own personal medical
consumption. Mrs. B suffers from arthritis and fibromyalgia.

Four years previously, and after trying a gamut of pharmaceutical
options, she tried smoking cannabis at the suggestion of a friend. It
worked, assisting her in dealing with her pain without the side effects
she had suffered from the pharmaceuticals. Her physician signed
paperwork authorizing her use in 2009 and renewed that paperwork in
2010. But my client didn't know she was supposed to send the
paperwork to the government to get a licence.

This grandmother, never having been in trouble with the law before, was
raided after police received a tip that she was producing cannabis on
her semirural property. She had about 260 plants in various stages of
growth, most tiny seedlings, and some low-quality dried cannabis stored
in her freezer. There was no evidence of any commercial activity and,
ultimately, the judge accepted that she grew the plant solely for her
personal medical consumption.

Because of her unlicensed status, she was arrested and charged.
Realizing her error, she then sent in her paperwork and, in due course,
obtained a licence to produce and possess medicinal cannabis, albeit in
smaller quantities than she had previously been growing. But still the
charges loomed large.

Rather than mount a lengthy and expensive challenge to the law, she
opted to plead guilty to production because she was, technically, not
allowed to do what she had done. At the sentencing hearing, the Crown
sought a nine-month conditional sentence. This is basically a period of
house arrest - custody in the community. I argued for an absolute
discharge - the finding of guilt but no entry of a criminal
conviction. I explained to the judge that the law around medical
marijuana was in serious flux, that my client posed no threat of
rearrest and that as a suffering citizen just trying to relieve her own
pain she did not deserve to be treated as a criminal. It was clear from
her lack of any criminal record and her obtaining a licence after the
fact that she would not be before the courts again.

The judge, in the exercise of his judicial discretion, did what judges
do and, indeed, what our entire scheme of sentencing is based upon. He
evaluated the circumstances of the offence, and of the offender,
considered the sentencing goals of denunciation of unlawful conduct and
deterrence of future crime by either my client or other persons, and
pronounced sentence. Mrs. B, I'm happy to report, will be able to
visit her grandchildren today confident that she is not a criminal in
the eyes of the law. She was granted the absolute discharge.

I think Canadians would generally agree with two propositions about this
case. First, that Mrs. B was anything but a woman engaged in
"serious organized crime" and, second, that justice was
ultimately done by the judge.

If the mandatory minimum jail terms proposed by the Harper government
were in effect today, Mrs. B would be one month into her mandatory
one-year jail sentence. The judge could not have granted her a discharge
because that option will no longer be available. And the judge could not
exercise his discretion to impose a just sentence because the minimum
jail term would be mandatory. Mrs. B. would spend much of the next year
in a steel cage under armed guard.

Think about the ripple effect that jailing this grandmother causes.

She probably loses her home because she cannot pay the mortgage. Upon
release she will either require social housing or live with the
assistance of family members.

Her children and grandchildren must see her, if at all, through steel
bars for a year. What lesson does this teach them about the law? Surely
not that it is just, or sane, or worth respecting.

Her medical conditions will not be properly treated. She will live in
pain and, likely, worsen. When released she will cost the health-care
system more than she did before being locked up. And so she, and we all,
suffer.

The taxpayer, under this supposedly economically frugal government, will
pay in excess of $100,000 to keep Mrs. B locked in a cage for a year. To
what end?

Let us be clear about something. Serious organized criminals are already
sentenced to lengthy jail terms. This law will not affect them at all.
But it will wreak havoc on our judicial system, result in the jailing of
untold numbers of Canadians who do not deserve to be there and will cost
us billions of dollars. It is unjust, ineffective and ultimately immoral
legislation designed for base political purposes.

And so when you hear politicians talk about "cracking down" on
"serious criminals" just remember Mrs. B and think about whether
you would want your grandmother locked up for growing a plant that made
her feel better. And then call their claims what they are: hogwash.

Kirk Tousaw is executive director of the Beyond Prohibition Foundation
www.whyprohibition.ca .