Appeal court affirms Surrey pot grower’s 10-month sentence

Trial judge found the minimum sentence under the CDSA constitutes cruel and unusual punishment

The Appeal Court of B.C. has affirmed a lower court judge’s conclusion that the minimum punishment of two years in prison under the Controlled Drugs and Substances Act for possession of marijuana for the purpose of trafficking is “cruel and unusual punishment.”

Justice Sunni Stromberg-Stein dismissed on Dec. 28 in Vancouver the Crown’s appeal of a 10-month sentence imposed after Phillip Francis McGee pleaded guilty to possessing marijuana for the purpose of trafficking and production of marijuana in the Surrey home he was renting.

The grow operation contained 601 plants. Under the CDSA, everyone who has a pot grow-op of more than 500 plants is guilty of an indictable offence and subject to a minimum sentence of two years, increasing to three years in cases where property belonging to a third party is used.

The sentencing judge decided that section of the CDSA violates the Canadian Charter of Rights and Freedoms concerning the right not to be subjected to cruel and unsual treatment or punishment.

The court heard that on Jan. 31, 2013 the RCMP raid a house McGee and his wife had been renting in Surrey since 1992 and found the grow operation in its crawl space, with access through a trap door in a closet on the main floor of the one-level home. The hydro meter was bypassed, ventilation ducts were set up, and three bags containing 515 grams of marijuana were found in the living room and bedroom.

Stromberg-Stein said in her reasons for judgment that the grow-op was “of average sophistication” and cost about $30,000 to set up. “The trial judge accepted an assessment by a police expert witness that there there had been at least two previous crops,” she noted. “Each crop was conservatively valued at $93,900.

“The home was rendered uninhabitable as a result of the grow operation,” the appeal court judge observed. “The owners had to pay $8,000 to the City of Surrey for the costs of investigating and dismantling the grow operation and had to sell the property at below market value because they could not afford the $30,000 required to make it habitable again.”

READ ALSO: Federal Crown drops appeal after charges against pot activist dismissed

READ ALSO: Feds agree to give provinces 75 per cent of pot tax revenues

McGee was 60 years old when he was sentenced and had no criminal record. The court heard McGee received about $20,000 per crop. Stromberg-Stein noted he had no addiction issues, had “strong support from family and friends” and became involved in the pot growing business to replace lost income after suffering a shoulder injury, at his fencing job of 17 years, that rendered him unable to work. He took care of the plants after others set up the grow operation, the court heard.

“He admitted being a principal of the grow operation but denied being the mastermind,” the judge noted. She added that McGee “had no connection to organized crime.”

Stromberg-Stein noted McGee has completed his 10-month sentence, which she found to be “at the very low end in the range suggested in the case authorities.

“At the very minimum a 12-to-15 months sentenced should have been imposed in the circumstances of this case,” the appeal court judge determined. The rental house was rendered uninhabitable and McGee “has made no restitution to the innocent property owners,” she added.

“These are aggravating factors which, in my view, the sentencing judge acknowledged, but failed to give sufficient weight. However, as I have noted, the Crown has not argued the sentence is unfit beyond that the mandatory minimum should have been imposed.”

Appeal Court Justices Mary Saunders and Lauri Ann Fenlon concurred.



tom.zytaruk@surreynowleader.com

Like us on Facebook and follow Tom on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Comments are closed

Just Posted

Rugby practices to return to Lower Mainland fields this fall

B.C. Rugby announced its return to play plan July 7

Surrey Mounties seize shotgun, ammo, after officers shot at with BB gun in Newton

Police say they were on foot patrol in the 6400-block of King George Boulevard when someone fired at them with a BB gun

Police ask for help finding driver after hit-and-run hurts 18-year-old pedestrian

Featured as Crime Stoppers ‘Crime of the Week,’ crash happened in 7400 block of 140th Street on June 5

Councillor Doug Elford Surrey’s acting mayor during McCallum’s “health concern” absence

Mayor issued a statement Tuesday night saying he’ll be back on the job by Monday

‘That night was so much fun’: Surrey-raised comedian in ‘New Wave of Standup’ series

Comedy clubs are still a no-go for Matty Vu, who grew up in Whalley

The pandemic is widening Canada’s workplace gender gap

Gender pay gap is incentivizing fathers to work while mothers watch children, a new B.C. study has found

Man found dead on Okanagan trail identified as Hollywood actor

GoFundMe campaign launched for man found dead at summit of Spion Kop

3 people dead in Prince George motel fire

Fire personnel believe the blaze was suspicious although investigation in early stages

B.C. sets terms to review police, mental health, race relations

MLAs to recommend Police Act changes by May 2021

Feds announce $8.3M to deal with ‘ghost’ fishing gear in B.C. waters

Ghost gear accounts for up to 70 per cent of all macro-plastics in the ocean by weight

VIDEO: Plane that reportedly crashed into Fraser River was from Delta flight school, Transportation Safety Board confirms

Cessna was flying over the river near Maple Ridge and Langley when it disappeared from radar

Almost 99% less land in B.C. burned this year compared to 2018

2018 was the worst year on record for wildfires

B.C. orders Coastal GasLink to stop pipeline construction near protected wetlands

The 670-kilometre pipeline is planned to transport natural gas from northeast B.C. to Kitimat

Most Read