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Brandon Crawford

B.C. Appeal Court decision to grant man discharge in drug case ‘instructive’: lawyer

Monday, December 06, 2021 @ 12:36 PM | By Jeff Buckstein

A man convicted on five counts of trafficking in cannabis by the provincial court of British Columbia in 2018 successfully acted as his own attorney and was unanimously granted a conditional discharge by the Court of Appeal for British Columbia in R. v. Woolsey 2021 BCCA 439.

The trial judge had imposed on Robert Woolsey a sentence of one-day imprisonment concurrent on each count, plus a fine of $250 on each count for a total of $1,250, and several ancillary orders: R. v. Woolsey 2018 BCPC 75 following Woolsey’s 2015 arrest for trafficking after selling cannabis to undercover police officers at a dispensary he operated in Deroche, B.C.

Woolsey had opened a Compassion Club dispensary of marijuana and derivative products available to customers who were permitted to possess them with valid medical authorization. However, on four occasions, Woolsey sold products to undercover police officers who did not provide proof of medical need.

Woolsey, 66, acknowledged that he had a decades-old criminal record for possession of cannabis, from 1969 to 1978, and that he had been consuming cannabis for more than 40 years to assist with medical conditions. He said his clinic in Deroche was associated with the B.C. Pain Society, and that he had been in touch with law enforcement officers prior and subsequent to the opening of his business, believing that it would be “tolerated.”

The Court of Appeal decision noted that the trial judge acknowledged this was a difficult case in terms of sentencing because of the legal transition Canada was in with respect to cannabis. Justice Patrice Abrioux of the Court of Appeal stated that the coming into force of the Cannabis Act, S.C. 2018, c.16 on Oct. 17, 2018, had “created a legal regime for the production, sale, and possession of recreational cannabis in Canada.”

The trial judge, when considering a fit sentence, had taken into account various unusual circumstances including: the sales in question being outside of the limits authorized by law or regulation; the fact they had taken place at a business location for medical purposes to deal with pain, not on a street corner or school grounds; and while Woolsey had a criminal record, there had been a 40-year gap which meant he was being treated as a first-time offender.

In his appeal, Woolsey claimed the trial judge made a material error by failing to consider his submission that a conditional discharge would be appropriate.

The Court of Appeal noted that although the Crown acknowledged that the statutory prerequisites considering a conditional discharge were met in this case, its position was that while the trial judge had been extremely sympathetic to the appellant, implicit in his reasons for not specifically referring to the granting of a conditional discharge as a potential sentence was “that he had decided it would not be in the public interest to do so.”

The Court of Appeal said the public interest was a major factor to consider. It cited a precedent case on discharges as a form of sentencing in B.C. in R. v. Fallofield [1973] B.C.J. No. 559, and reaffirmed by R. v. Jeremiah 2018 BCCA 89. The public interest is also stated in s. 730(1) of the Criminal Code, titled conditional and absolute discharge.

“I would conclude that the appellant satisfies the relevant Fallofield criteria, including that it would not be against the public interest to grant him a conditional discharge in these particular circumstances,” wrote Justice Abrioux, in a decision that was agreed to by Justices Gail Dickson and Gregory Fitch.

“Respectfully, I have concluded that the judge did commit a material error. In my view, in light of the fact that a conditional discharge was: the appellant’s primary or key argument on sentence; and this sentence was in his best interests, it was incumbent on the judge to specifically address the propriety of a conditional discharge and whether it would be contrary to the public interest,” Justice Abrioux ruled.

Justice Abrioux held that the trial judge was correct in having emphasized the “breach of trust inherent in the commission of these offences.” But, he noted, “sentencing remains an individualized process. The disposition I am proposing is responsive to the unique and unusual facts of this case and the offender’s personal circumstances, and I consider it highly unlikely that the result I am proposing will stand as a precedent in future cases.”

The Court thus allowed the appeal, ruling that the appellant should receive a conditional discharge, and that the victim surcharge orders be set aside.  

The Crown had earlier conceded that the victim surcharge orders be set aside in light of the Supreme Court of Canada decision in R v. Boudreault 2018 SCC 58, issued on Dec. 14, 2018, subsequent to the trial judge’s ruling, which concluded that the victim surcharge violated s. 12 of the Canadian Charter of Rights and Freedoms.

“This is an interesting decision from the BCCA, where the court reviewed a sentence of a self-represented accused convicted of trafficking cannabis — a substance which has become legalized since the offences were committed,” said Jason Tarnow, a trial lawyer and partner with Tarnow Criminal Law in Richmond, B.C.

“In my view, the BCCA, in substituting a conditional discharge as a fit sentence, did so because the trial judge failed to give any meaningful reasons as to why a discharge was contrary to the public interest,” Tarnow added.

Despite the Court of Appeal stating that this decision shouldn’t set a precedent, this is a unique decision in many ways, given that it involved a self-represented individual defending himself on a cannabis charge at a time of changing laws, said Jordan Watt, a partner with McCullough Watt Sutton & Lynsky in Victoria.    

Watt agreed with the decision. Given Woolsey’s motivation for being involved in the offences, which the court described as being more his desire to help people with illness as opposed to selling simply for profit, as well as his advanced age, “it would certainly not be contrary to the public interest for a discharge to be imposed,” he said.

 Brandon Crawford, Foord & Crawford LLP

Brandon Crawford, Foord & Crawford LLP

The major issue before the Court of Appeal was whether the trial judge gave sufficient consideration to the fact that Woolsey, in representing himself, was seeking a discharge and whether or not, in light of the motivating factors, it would be contrary to the public interest to grant him that, said Brandon Crawford, a partner with Foord & Crawford LLP in Ottawa.

Appellate courts give significant deference to a sentencing judge’s decision. But what is significant in this decision is the Court of Appeal looked at the entirety of the record with a purposive and contextual lens to get to the proper outcome. “I think that can be instructive. That is something that I’d like to see appellate judges do more frequently,” said Crawford.

Tarnow noted that while this particular case is fairly fact-specific and unique, the broader principle that is instructive to appellate counsel and/or justices is that sentencing submissions made by a litigant — whether an accused or by the Crown, which are ultimately rejected by the court, ought to be given meaningful reasons as to why the sentence sought is unfit or deemed to be inappropriate.

“Sufficient and meaningful reasons are important to understanding any sentence imposed,” he elaborated.

Appellate authority is always instructive to lower courts, specifically with respect to judges, as well as for lawyers, said Watt. It highlights the importance of considering all of the options that are available and reasonable in the circumstances when sentencing an individual — especially when the courts are dealing with a self-represented person.

“From a lawyer perspective, it also assists in providing an example of a set of circumstances, both personal and offence related, that are not contrary to the public interest,” he added.

What comes through in this case is it involves an individual who is trying to help himself and others manage pain, said Watt. “It’s just not under the umbrella of the typical drug trafficker. So it certainly does highlight how sentencing is a unique and individualized process,” he stressed.

The Lawyer’s Daily attempted to contact counsel for the Crown, but did not receive a response.