HTTP/1.0 200 OK Content-Type: text/html Jail Time Now More Likely For Marijuana Growers
Pubdate: Sat, 19 Oct 2002
Source: Kitchener-Waterloo Record (CN ON)
Copyright: 2002 Kitchener-Waterloo Record
Author: Frances Barrick, Record Staff
Bookmark: (Cannabis - Canada)


People convicted of operating large-scale marijuana operations in 
residential areas have a greater chance of going to jail after a landmark 
decision this week by the Ontario Court of Appeal, a local drug prosector said.

"The appeal basically, as far as the Crown is concerned, confirms that 
conditional sentences are most often not appropriate" for pot growers who 
endanger the lives of neighbours and others in the community, said David 
Rowcliffe, a drug prosecutor who heads a Kitchener-based satellite office 
of the federal Department of Justice.

"The Crown will be using the Court of Appeal decision as a precedent for 
all future sentencings," Rowcliffe said.

Even Hal Mattson, a Kitchener lawyer who represents many of the people 
charged locally with these indoor growing operations, said the decision 
will make conditional sentences, the most common sentence given in local 
cases, less likely in future.

Rowcliffe called the decision a "test case," as it should give the lower 
courts guidance on sentencing. Locally, the sentences have ranged from 
suspended sentences to 15 months in jail for this crime.

More than 100 cases are slowly moving through the court system.

The case that caused the three appeal court judges to turn their eye, for 
the first time, to this crime involved a two-year sentence a Stoney Creek 
man received last June for turning his family home into a large-scale 
marijuana-growing operation.

In sentencing Khuong Van Nguyen last June, Justice Bernd Zabel of Hamilton 
said courts across Canada have tended to treat residential 
marijuana-growing operations leniently, but it was now time to make the 
"risk-reward ratio" less favourable for these people.

"They have invaded our community with apparent impunity," Zabel said in June.

"They have boldly entered residential areas where our citizens have saved 
to purchase dream homes for themselves and their families -- only to be 
confronted with large-scale, high-risk criminal activity on their street 
and even next door," the judge said.

Nguyen's defence lawyer appealed the sentence, saying it was too harsh, and 
Rowcliffe, the Crown prosecutor who argued the case before the Ontario 
Court of Appeal, said he argued that the sentence was appropriate, 
considering the negative effect of such operations on communities.

The appellate court agreed that jail was appropriate, but said two years 
less a day was too long a sentence. Instead, they sentenced Nguyen to the 
jail time he'd already served, which Rowcliffe said amounted to about 14 

"We agree that the trial judge was entitled to decline to impose a 
conditional sentence in light of the evidence of increasing prevalence of 
this form of offence in the local communities," and the danger caused by 
bypassing hydro lines to steal the large amounts of electricity needed to 
grow the plants, the three higher court judges ruled.

"However, in our view, the trial judge failed to give sufficient weight to 
the fact that the appellant (Nguyen) was a first offender; and that he (the 
trial judge) overemphasized the evidence of increasing prevalence when he 
imposed a sentence that is beyond the range for similar offences in 
Ontario," the judges said in their handwritten decision.
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