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

Just Posted

‘Potentially life-threatening’ injuries in South Surrey crash

152 Street closed in both directions between Colebrook Road and 40 Avenue

No final high school game for Surrey all-stars; six scholarship winners named

COVID-19 forces cancellation of all-star games for boys and girls at Enver Creek gym April 3

Surrey school district’s meal program to continue during COVID-19

‘We didn’t want our students or their families to have one more thing to worry about,’ says board chair

COVID-19: Daily update on the pandemic in Surrey, White Rock and beyond

MARCH 31: School district meal program to continue, viral TP challenge video includes White Rock

Surrey Santa Parade may be cancelled

Annual parade in Cloverdale has seen security costs skyrocket

‘The Office’ star John Krasinski offers Some Good News in trying times

‘The human spirit still found a way to break through and blow us all away’

No laws in B.C. to force businesses to offer refunds, even during a pandemic

Black Press Media talks to Consumer Protection BC on how to navigate during COVID-19

COVID-19 essential workers can apply for B.C. pre-school child care

Parent referral opens, providers offered emergency funding

Most abiding by COVID-19 rules, back fines, arrests of those who aren’t: poll

But 64 per cent said they’ve personally witnessed people not respecting the measures

Walkers, grocery store customers courteous with physical distancing in B.C.

Some cyclists also acknowledge each other and walkers as well on a wide trail

B.C. worker advocate group calls for more sick days, protected medical leave

COVID-19 highlights need for changes to workers legislation: Retail Action Network

Lower Mainland cop awarded almost $3.2 million for 2 car crashes

Jeffery Neufeldt of Mission was injured on the job in collisions in 2013 and 2016

Most Read