IN THE SUPREME COURT OF BRITISH COLUMBIA
R. v. Laird,
2013 BCSC 59
Jamie Ray Laird
Before: The Honourable Madam Justice Watchuk
Oral Reasons for Judgment
Counsel for the Crown:
Counsel for the Accused:
Place and Date of Hearing:
December 20, 2012
Place and Date of Judgment:
January 8, 2013
 Jamie Ray Laird has entered a guilty plea to the charge of production of marihuana on March 1, 2011 at or near the city of Quesnel, British Columbia.
 The co-accuseds on the Indictment are James Alfred Laird and Donna Marie Laird who are Jamie Laird's parents. It is understood that at the conclusion of this sentencing, the charges against James and Donna Laird will be stayed.
 On this sentencing hearing, the issue is whether Jamie Laird should serve a jail sentence in the community or in an institution. Since the Crown is proceeding only against Jamie Ray Laird, I will refer to him throughout these Reasons as Mr. Laird. Any reference to his father will be indicated by reference to "Mr. Laird Sr.".
 This offence is commonly referred to as a “marihuana grow operation”. The police investigation began as a result of complaints from neighbours. On March 1, 2011, police executed a search warrant at the family property on Red Bluff Road which is 10 kilometres outside Quesnel, British Columbia. On the property, there is a main residence plus smaller buildings. Mr. Laird Sr. and Mrs. Laird live in the main residence. Mr. Laird lived in the quarters attached to the riding arena with his wife and son. There were two large outbuildings in which the marihuana plants were located and a smaller building with an electrical feed.
 The grow operation in the two outbuildings did not have automatic watering and did not use a hydro bypass. However, the equipment included some shrouds, high wattage lights, and mylar plastic. There were modifications made to the buildings including electrical and wiring modifications. The plants were healthy. There were chemicals and fertilizers used, and a chart detailing the amounts of Vitamax and other fertilizers to be used for each level of growth was found. The plants were individually potted. There were clippings in a plastic bin and in a large garbage bag. There was a large drying rack, a screen and scale. A timer was located, but it was not able to be determined if it was connected.
 502 marihuana plants were located in the two outbuildings. The plants were at different stages of maturity. 118 were 2" to 10" tall, 131 were 12" to 18" tall and 253 were budding and were between 30" and 42" tall. All plants were potted in black plastic pots in soil.
 Also located on the search of the property was paraphernalia including a scale, baggies and a grow schedule. Another drying rack was located in the bathroom of the main residence occupied by Mr. Laird Sr. and his wife.
 With regard to the value of the marihuana, it is agreed by counsel that there is a low to high range of values based on a yield per plant of 1 to 3 ounces. One crop would therefore yield between 31 and 94 pounds or between 502 and 1506 ounces. The range of values at the pound level would be between $62,000 and $263,200 and at the ounce level between $100,400 and $451,800.
 It is admitted that this was the second crop of marihuana on the property. There was one prior crop, but some of it was spoiled from faulty storage.
 Mr. Laird is the middle child in the Laird family which has three sons. He is a long-time resident of Quesnel, and has been residing at his current residence for the past 18 years. He has been married to his wife for 16 years, and they have a 13-year-old son.
 Mr. Laird owns the property with his parents and his younger brother Budd. Budd also lives on the property and works only sporadically due to health problems. Mr. Laird's older brother Dale, 58 years old, has a permanent disability from Parkinson's disease.
 The Laird family property is 80 acres. There are 13 horses and 12 steers at present although there are often more horses when Mr. Laird is training them. There is a riding arena and living quarters attached where Mr. Laird lives with his wife Lana and his 13-year-old son Roper.
 Mr. Laird has a Grade 8 education. In the past, he earned the majority of his income from the rodeo circuit where he trained horses for riding, roping, barrel racing and reining.
 Mr. Laird is presently employed as a logging truck driver and has been working for the same company since May 2012. He drove logging trucks for a different employer for two years prior to that. His present finances are described as "tight". He earns $2800 every two weeks from his truck driving and on that amount, he supports his family.
 Mr. Laird Sr. and Mrs. Laird are retired, having sold a number of Husky stations which they owned.
 Marihuana has been used medicinally by his father and both brothers. His father has used marihuana for arthritis, and Dale used marihuana for his Parkinson's disease. Budd has also used marihuana to assist with his nausea. Mrs. Laird used the marihuana for her sons and husband in cooking. Mr. Laird Sr. and Dale now have licences to obtain medical marihuana.
 It is submitted that the family commenced the grow operation because three of the men needed marihuana for medical purposes. The secondary purpose of the grow operation was to earn extra money to assist with family finances. In a statement to police, Mr. Laird Sr. discussed the medical bills and financial difficulties, and stated that they "needed to make money".
 The Court had the benefit of a pre-sentence report. The writer stated that Mr. Laird was cooperative during the interview. She stated that "factors that may be seen as contributing to his criminal behaviour include poor insight, poor problem solving skills and risk taking behaviour".
 With regard to the purpose of the cultivation of marihuana, Mr. Laird is quoted in the report as saying that he primarily grew marihuana for medicinal purposes for his two brothers and for his father.
 Mr. Laird does not, for the purpose of this sentencing, have a criminal record. Although the court history indicates a charge from 1986 of unlawful use of a credit card, Mr. Laird does not recall the conviction although he recalls the charge. Counsel agreed that that charge is not to be taken into account in this sentencing.
 It is the submission of Crown counsel that a sentence of 15 to 18 months to be served in a correctional facility is the fit and appropriate sentence.
 Crown counsel emphasizes the particular need for deterrence in the Cariboo area due to the large number of marihuana grow operations proliferating in that area.
 Defence counsel submits that this is an appropriate case for the imposition of a conditional sentence order. He submits that deterrence, denunciation and rehabilitation can be addressed by a conditional sentence in these circumstances.
 Crown counsel submits that this was a large sophisticated ongoing grow operation. It is defence counsel's submission that this was not a sophisticated operation and that it was mid-range in size.
 With regard to the sophistication of the marihuana grow operation, I conclude on the evidence that this was a relatively sophisticated operation. The marihuana was grown in two outbuildings which had been modified. Although there was no hydro bypass, there were electrical and wiring modifications. Although the plants were not watered by a timer, they were well tended with a chart of a fertilizing schedule. Equipment included a shroud, high wattage lights, and mylar plastic. Equipment for the harvest included a screen, drying racks, and a scale.
 With regard to size, both counsel referenced the scale in the decision of Madam Justice Ryan in the case of R. v. Koenders, 2007 BCCA 378 where operations with 500 plants or more were characterized as large. With 502 plants on an 80 acre rural property, defence counsel submits that this is more accurately characterized as a mid-size grow operation. Notwithstanding the location of the grow operation, the size of the operation as a whole, I conclude, is best described as the low end of a large grow operation.
 It is an aggravating factor that this was a relatively sophisticated grow operation at the low end of a large size.
 It is also an aggravating factor that Mr. Laird was an owner-operator with some direct involvement in the grow operation.
 The guilty plea entered by Mr. Laird is a mitigating circumstance. Mr. Laird has expressed remorse to the Court and to the writer of the pre-sentence report. Although he did not realize the potential consequence for his action, as he thought he would be subject to a minimal fine if he was caught, he is remorseful for putting his relationship with his wife and son in jeopardy and for his actions. I am satisfied that Mr. Laird takes full responsibility for his actions. He was co-operative with the police investigation. His remorse is a mitigating factor.
 A number of letters were submitted on behalf of Mr. Laird. They attest to his good character, his generosity, his community spirit, and his hard work in the rodeo and in the logging businesses. They characterize him as a kind, hard-working person. This community support is a mitigating factor.
 Although the grow operation had a predominantly commercial purpose as discussed below, it is also a mitigating factor that one of the purposes of the grow operation was for the personal medical use of family members.
 In this sentencing hearing, there is no issue that Mr. Laird should be sentenced to a period of jail for his role in the grow operation in Quesnel. The issue is whether that jail sentence should be served in an institution or in the community by way of a conditional sentence.
 There is also no issue that, with regard to the requirements for eligibility for a conditional sentence in this case as stated in s. 742.1 of the Criminal Code, R.S.C. 1985, c. C-46, Mr. Laird meets the first two main requirements. The fit sentence for this offence is less than two years, and the community is not endangered by Mr. Laird serving a sentence in it.
 The third requirement for the imposition of or eligibility for a conditional sentence is the issue: is a conditional sentence consistent with the purposes and principles of sentencing including denunciation and general deterrence?
 With regard to general deterrence, the Crown submits that the sentence should address the stronger need for general deterrence in this specific geographic area where grow operations are a recognized problem.
 It is submitted on behalf of the defence, that since one of the intentions for the grow operation was for personal use for medical purposes, that a conditional sentence is particularly appropriate.
 The first issue which must be resolved is the proportion of personal use to commercial use since the Crown submits that this was an ongoing commercial operation for profit.
 It is not disputed that one of the motivations of the grow operation, particularly by Mrs. Laird, was to assist her husband and two sons with the provision of marihuana for medical purposes. She used some of the marihuana in cooking, by making stews and baking. The quantity used for that purpose was approximately one ounce per day or 365 ounces per year or 22 pounds per year.
 It is also not disputed that Mr. Laird Sr. in his forthcoming statement to the police officers indicated that they, the family, needed to make money. Mrs. Laird in her statement admitted that the family sells marihuana and stated that her son, Jamie Laird, made arrangements with a male for the pickup of the marihuana for sale.
 It is known that this was the second crop of this grow operation. It is known that much of the first crop was poorly packaged and needed to be discarded. There is no indication in the evidence that the Laird family intended this crop to be the last, or that it was not intended to be an ongoing grow operation capable of generating income on a regular basis.
 With regard to the amount consumed for medical purposes in the family, in response to a question from the Court, defence counsel advised that one ounce per day is used by the family, or 365 ounces or 22 pounds per year. It is understood that three crops a year of marihuana are standard. Thus, approximately 7 pounds per crop was intended for a medical purpose. Based on counsel's agreement that the expected yield per crop would range between 31 and 94 pounds, the marihuana for personal use would range between 7% and 22% of one crop assuming all plants were healthy. In other words between 78% and 93% of the crop would be designated for commercial purposes.
 To grow the intended 22 pounds of marihuana per year, the amount used by the family for personal medical purposes, would require, at the yield agreed by counsel in this case, between 41 and 121 marihuana plants. I therefore conclude that while there is a personal element to the intended use of the plants and a medical purpose is established, it was at best one quarter of the marihuana grow operation of 502 plants which had a personal medical purpose.
 There is therefore a personal element to the grow operation, but it remains a commercial venture for profit. The size of the commercial operation would be mid-range, between 381 and 461 plants, after taking into account the personal use.
 The development of the law of eligibility for a conditional sentence in marihuana grow operations has been well set out in many cases at all levels of court. Of particular assistance are the cases including the case summaries in R. v. Chen, a decision of Judge Bayliff of the Provincial Court in Williams Lake cited at 2011 BCPC 297, R. v. Koenders, 2007 BCCA 378, where Madam Justice Ryan provided a detailed review of the jurisprudence, and R. v. Farewell, 2007 BCSC 160, which discusses "the real tension in the cases [which appear] to be over whether a conditional sentence will ever be properly perceived by the public as a sufficient indication of society's denunciation and the need for general deterrence" and reviews the case law. It is not necessary to cite the extensive summaries provided in these and other cases other than to quote from Koenders where Madam Justice Ryan stated in paras. 12, 13, 22, 37 and 42:
 These passages clearly show that there is no presumption in favour of or against a conditional sentence, including offences related to the production of marihuana.
 That being said, it is my view that a discernible range and approach to sentence has developed in this Court with respect to production of marihuana and related offences that turns most crucially on the commercial nature of the offence and the personal circumstances of the offender.
 Obviously there are cases that are not driven solely by commercial benefits. Purely non-commercial marihuana grow operations are generally regarded as being the least serious manifestations of the offence of production. Production solely for personal use or solely for the medical use of others will often attract a non-custodial sentence. Thus, as the level of commerciality increases, so does the seriousness of the offence.
 As these cases indicate, there are multiple factors that go into the determination of whether conventional incarceration or a conditional sentence is appropriate. However, I will not review all of the other cases that have made their way to this Court. Where conditional sentences or very short sentences of incarceration have been imposed for the commercial production of marihuana it is possible to find a collection of mitigating personal circumstances. In many cases, there has been a guilty plea coupled with a joint submission. In other cases, there are health or age issues. Yet again in others the appellant has played a very minor role.
 In the end, the gravity of the offence must be examined along with the personal circumstances of the offender. The cases reveal, with some anomalies, that when dealing with the principal of a large scale, purely commercial operation, with few if any mitigating factors in the personal circumstances, this Court has imposed or sustained a period of at least one year of conventional incarceration. Where less serious offences are involved, and there are mitigating circumstances, this Court has determined that a strict conditional sentence can properly address the goals of denunciation and deterrence. [Emphasis added]
 I turn to the issue of consideration of local circumstances.
 The starting point for the analysis of the relevance of general deterrence and the weight to be placed on general deterrence in these circumstances is found in para. 107 of R. v. Proulx, 2000 SCC 5, where Chief Justice Lamer said:
107 Incarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence. Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed.
 The circumstances of this community, the Cariboo area of British Columbia, have been considered in four recent cases of the Provincial Court of British Columbia. The cases of R. v. Topley, 2012 BCPC 431, R. v. Lam and Vo, 2011 BCPC 321, R. v. Chiu, 2010 BCPC 42 and R. v. Chen, 2011 BCPC 297, all considered marihuana grow operations in this area. In R. v. Chen, Judge Bayliff stated with regard to denunciation at para. 59:
 However, what can be said, without any moral ambiguity, is that those who engage in the commercial production of marihuana have made a deliberate choice to step outside of the law in exchange for money. And, it is this aspect of the activity that does require denunciation. When the law is broken in a very deliberate fashion and for large profits, as occurs in these cases, respect for the rule of law is seriously undermined both amongst those, like Mr. Chen, who decide to take the risk to get involved in such activities and in the wider society, amongst citizens who hear about such conduct.
 With regard to the dangers to the community generally of any marihuana grow operation, she states at para. 62:
 Yet another consideration is the tendency of marihuana production to attract and generate violence despite the fact that it is an entirely peaceable activity in and of itself. There is the “grow rip” situation that comes before the court from time to time, where marihuana producers are targeted by thieves because those thieves know the producer cannot call on the police for assistance and the resulting tendency of some marihuana growers to arm themselves in return.... [citations omitted] Organized crime is also attracted to the lucrative and unregulated earnings associated with this industry...
 The dangers of commercial production of marihuana in that area of British Columbia are addressed in para. 36-38 and 63. Although the facts in R. v. Chen and in R. v. Wallis, 2007 BCCA 377 cited below differ from those present here, the Reasons in R. v. Chen address the impact in the Cariboo which is the area of concern in that sentencing and in this case.
 R. v. Wallis, 2007 BCCA 377 (CanLII), 2007 BCCA 377: This was a medium sized grow operation (638 plants) in a house co-owned by Wallis and his father. Wallis entered a guilty plea. He was 28 years old at the time and had no criminal record. There was an electrical by-pass. Wallis had quit steady employment in order to devote himself full time to the production of marihuana. He had good family support and had paid back his parents for losses incurred on the house as a result of the grow operation. He received a very positive pre-sentence report. At trial a jail sentence of 15 months plus probation for a year was imposed. This was upheld on appeal by Justice Levine, concurred in by Kirkpatrick, JA with Thackray, JA in dissent. The majority held that the trial judge had not erred in finding that there was a need for denunciation and deterrence that outweighed other factors. He did not err in taking judicial notice of a “significant and lucrative illegal marihuana industry in this province”. He was entitled to consider the impact of crime on his local community: ¶ 31. At ¶ 32 Justice Levine wrote:
“This court has not precluded the imposition of a conditional sentence for production of marihuana....In every case consideration of the fundamental principle that: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender", as set out in s. 718.2 of the Code, is of major importance, and may lead to the conclusion that a conditional sentence is appropriate in the particular circumstances.”
 After reviewing certain cases where conditional sentences were considered fit she drew a contrast between these and Wallis’ case at ¶ 36: “None of these cases involved the principal operator and owner of a large grow operation, who had quit his regular and well-paid employment to carry out the operation.”
 At ¶ 40 Levine, JA concluded:
“In the circumstances of this offence and this appellant, the sentencing judge properly emphasized the principles of denunciation and deterrence. The sentence of incarceration is proportionate to the gravity of the offence and the responsibility of the offender. The offence is driven by greed, and has obvious deleterious effects on the communities in which it appears to thrive. The appellant, for no reasons that would serve to mitigate the circumstances of the offence, turned his back on lawful society, and embarked on a criminal enterprise that endangered his community. I find no basis to interfere with the sentence imposed.” [Emphasis in Original]
 Finally, the commercial production of marihuana in residential and rural areas (Mr. Chen was producing marihuana in an upscale residential area in Williams Lake) is destructive of a sense of community. Because marihuana production is illegal, it is secretive and it is exclusive – even in a case like this where there were no weapons or “grow op dogs” on duty. Mr. Chen developed no connection with Williams Lake that I have been told of. He came here simply to work in the grow operation. His permanent address is in Vancouver. There is no indication that he contributed to, or participated in, the local community to any degree. Instead of the possibility of trust, friendship and greater understanding amongst neighbours, there is secrecy, suspicion and resentment. This is a loss to Mr. Chen and a loss to the community and it is just one of the many negative consequences of this sort of large scale, illegal, commercial activity.
 In the case of R. v. Chiu, Judge Morgan also commented on the "concern regarding the effect of marihuana grow operations have on the community".
 After citing R. v. Wallis, Judge Morgan continued in para. 61 as follows:
 The BC Court of Appeal noted, at paragraph 30, and that it was appropriate for a sentencing judge to take judicial notice of the existence in this province of a significant and lucrative marihuana industry. It was also stated by the Court, at paragraph 31, that the impact of crime on the community is a factor that local judges are in a position to be aware of and reflect in their sentencing decisions.
 Judge O'Byrne in the Quesnel case of R. v. Lam and Vo stated his concern with regard to grow operations being staffed by individuals who come to the Cariboo region from the Lower Mainland. At paras. 9 and 10, he stated:
 I guess it does not occur to people when they come out of the Lower Mainland that two Vietnamese gentlemen at an outbuilding near Hixon might draw attention to themselves because they would stand out like a palm tree in the middle of the prairies. Notwithstanding that, it appears they want to come forward and do grow operations.
 In my mind, the most important principle to sentencing is specific deterrence. Unless we stop people from coming up to the Cariboo Chilcotin and north, they are going to keep coming, and in that view, jail is the only way to do it. There is no consideration in my mind whatsoever of a conditional sentence.
 In R. v. Topley, Judge O'Byrne imposed a jail sentence of six months notwithstanding the submission of Crown counsel for a conditional sentence on an unsophisticated grow operation of 113 plants. Mr. Topley was a local resident who was going through a bad spot in his life financially. In para. 15, Judge O'Byrne states with regard to the concern of the community as follows:
 Second after deterrence is the matter of protection of the public. People who live in communities in this city, Prince George, have a right to be protected from people like you growing pot, and the reason for it is because of the threat of violence and the threat of home invasions and other people having their property values devalued because of people like you doing commercial grow-ops in residential areas.
 It is submitted by defence counsel that the concerns reflected in the decisions on sentencing for marihuana grow operations in the Cariboo for individuals who come to the Cariboo from the Lower Mainland are not relevant since Mr. Laird is a long-time resident of the Cariboo. The issue is the effect on the community. Given the well known dangers to the community of marihuana grow operations, attracting other violence, the possibility for fires even in rural locations where fire services may be some distance away, and the shroud of secrecy which is reflected in the concerns of the neighbours which led to the execution of this search warrant, it is not less serious or of less concern that Mr. Laird was a resident committing an offence in his own community as opposed to being a transient or visitor committing an offence in someone else's community.
 I therefore agree with Crown counsel that the sentencing principle of general deterrence in these circumstances should be given greater weight. However, that is not the end of the considerations with regard to the issue before the Court. It is a fundamental principle of sentencing that the Court should avoid incarceration wherever possible, particularly for first time offenders. Mr. Laird is a first time offender for the purpose of this sentencing.
 The circumstances of the offender are an equal consideration in sentencing. It is the circumstances of this offender in committing this offence which must be considered by the Court in determining if, as I must, a conditional sentence is available to Mr. Laird.
 The circumstances of the offence are, in summary, that it was a large and after taking into account the personal use element, mid-range in size and a relatively sophisticated marihuana grow operation, that Mr. Laird was one of the principals and not simply the gardener or caretaker, and that it occurred in a community with particular concerns regarding marihuana grow operations. It was primarily for commercial purposes although there was an element of personal medical use intended for the marihuana crop.
 Mr. Laird has been a law abiding and productive member of society for 52 years. He lives on an 80 acre farm with his parents, his brothers, his wife and son. He has close ties in the community where he is well thought of. He is hard-working both in the logging business where he drives a truck and in the rodeo business where he continues to train horses. He is accurately described as a good man.
 The family lived frugally and there were no indicia of excessive spending. Mr. Laird worked long hours at his truck driving job in addition to continuing in his profession of training horses. That the Laird family was hard working and of modest means is not in issue.
 However, Mr. Laird made the decision to engage in the crime of production of marihuana. This was not a spur of the moment decision, but a considered decision taken and implemented over a period of time, a minimum of four to five months as they were into the second crop. Although part of his motivation was to assist his brothers and father with medical marihuana, the number of plants well exceeded that necessary for medical purposes.
 He expresses remorse. I am satisfied that there is little need for specific deterrence. With regard to rehabilitation, Mr. Laird otherwise has led a productive life and assuredly will continue to do so with the support of his family and friends.
 I am guided by Madam Justice Ryan in R. v. Koenders, where it is stated that "as the level of commerciality increases, so does the seriousness of the offence" (para. 22). Although there are mitigating factors, most particularly the guilty plea, this is a serious offence in the Cariboo. "[I]t undermines respect for the law and has a corrupting influence both on those who participate in it as well as those who observe it being carried on in the community on a commercial scale" (R. v. Chen at para. 97). Further, I conclude that "the effects of incarceration are likely to have a real deterrent effect" (R. v. Proulx at para. 107).
 Will you stand, please, sir.
 I therefore, Mr. Laird, sentence you to a period of jail to be served in an institution. Taking into account all of the factors which I have reviewed above, I am satisfied that a shorter time of incarceration adequately addresses the principles of sentencing including rehabilitation and I therefore sentence you sir to 9 months in jail. That will be followed by 6 months of probation with the following terms:
1. Keep the peace and be of good behaviour.
2. Report to a probation officer within 48 hours of your release from custody and thereafter as and when and where directed by the probation officer.
 Counsel, I am pleased to hear from you if you have any other suggested terms. Thank you.
 Mr. Sheriff, after I leave the courtroom, would you please give Mr. Laird a few minutes with his family in your presence. Thank you.
"The Honourable Madam Justice Watchuk"