Woman given 'unfit sentence' because she's a pot smoker, Yukon judge rules
Supreme Court judge grants Lena Josie a conditional discharge on earlier assault conviction
A Yukon Supreme Court justice has granted a conditional discharge to a woman from Old Crow, Yukon, who had appealed her original sentence on an assault conviction, saying the judge had punished her because she admitted smoking marijuana twice a day.
In a written decision issued Tuesday, Justice Ron Veale agreed with Lena Josie, 57, saying she had been given an "unfit sentence" that unfairly punished her for her drug habit.
The case stems from Josie's previous guilty plea to an assault charge, related to an incident in Old Crow in 2016.
During sentencing for that offence, the defence asked for a conditional discharge, while the Crown requested a suspended sentence, which would give Josie a criminal record.
The sentencing judge at that time refused to grant the conditional discharge, citing information taken from Josie's pre-sentencing report where she admitted to smoking two marijuana joints each day. The judge said a discharge would be contrary to the public interest because by using marijuana daily, Josie was contributing to the illegal drug trade.
During the appeal hearing in November, Josie's lawyer Vincent Larochelle argued that if it weren't for her marijuana use, the judge would have granted the discharge.
Crown attorney Amy Porteous countered that giving Josie a conditional discharge would not "send a message of general deterrence, and would not foster confidence in the administration of justice."
In the decision issued Tuesday, Justice Ron Veale found the sentencing judge was wrong to conclude that it would be against the public interest to grant a conditional discharge to Josie "because she disclosed that she smokes marijuana daily to calm herself down."
Veale found it was appropriate to disclose her marijuana smoking for her counselling and pre-sentencing report, and "not a disclosure for which she should be penalized in her sentencing."
"I am of the view it is not in the public interest that the personal possession and use of marijuana should result in imposing a criminal record on a 56-year-old First Nation who has taken counselling, apologized, and taken responsibility for her offence," Veale says in his written decision.
'Not before the court on a drug charge'
On the issue of deterrence, Veale concluded Josie's sentence is meant to deter further assaults, and is not related to her marijuana use. Because of this, he argues that a conditional discharge wouldn't impact the public's confidence in the justice system.
"With respect to the sentencing judge's concern about illegal drug trafficking, it is simply not appropriate to lay that legitimate community concern on [Josie], who is not before the court on a drug charge," Veale writes.
"It may indeed present a quandary to the RCMP in Old Crow pending the passage of federal legislation permitting possession of marijuana in small quantities, but that has little to do with the offence of common assault and whether [Josie] should be conditionally discharged."
Veale found the suspended sentence and resulting criminal record was unfit. He allowed the appeal and granted Josie a conditional discharge.