Lena Josie was sentenced to six months probation instead of receiving a conditional discharge. (Mike Thomas/Yukon News file)

Appeal court hears case of Old Crow woman who says sentence unfairly factored in marijuana use

Lena Josie’s lawyer says she was denied discharge on assault because of unrelated marijuana use

The Yukon Court of Appeal heard the case of an Old Crow woman Nov. 30 who’s contesting her sentence for an assault charge on the grounds that the sentencing judge focused on her marijuana use — despite it having nothing to do with her offence.

Fifty-six-year-old Lena Josie, of Vuntut Gwitchin First Nation, pleaded guilty to common assault in February after punching another woman in the face at an Old Crow grocery store in December 2016.

However, although sentencing judge Michael Cozens found Josie was unlikely to reoffend and would otherwise be granted a conditional discharge, he wrote in his sentencing decision that Josie “admitted to smoking marijuana on a daily basis” and because of that, found a discharge wasn’t in the public interest. Josie instead received a six-month probation order.

In court, Josie’s lawyer Vincent Larochelle argued to Yukon Supreme Court Justice Ron Veale that modern Canadian society has moved towards the legalization of marijuana and a greater acceptance of its consumption, to the point where smoking marijuana is largely no longer seen as a major issue.

Larochelle also took issue with Cozens linking marijuana consumption to supporting drug trafficking and crime.

“It doesn’t make sense,” Larochelle said, and offered up a theoretical scenario to Veale — if he were to show up in court for an assault charge wearing a cotton shirt made in a sweatshop in Bangladesh, does that mean he shouldn’t get a conditional discharge because he, by Cozens’ logic, is funding slavery?

Larochelle argued, in closing, that allowing Josie’s sentence to stand would set a dangerous precedent, setting up a future where lawyers will tell their clients not to disclose drug use in order to obtain conditional discharges.

Crown attorney Amy Porteous, in her submissions, said that Josie’s sentence was fit. The whole point of a conditional discharge is that the person to whom it’s granted to will follow the law and keep the peace, she said, and possessing marijuana is a violation of the Controlled Substances Act. Porteous argued that Larochelle was asking the court to overlook that fact and assume that Josie wouldn’t be caught, even though she said she intends to continue smoking marijuana.

Porteous said if the situation were the other way around — if Josie had been charged with possession and told the court she intends to keep punching people in the face — the court would have no issue with not granting her a conditional discharge.

Porteous also noted that, even though it wasn’t a key factor in Cozens’ sentencing, Veale should consider the issue of what she said was Josie’s lack of genuine remorse and how that would impact a sentence.

Veale is reserving his judgement.

Contact Jackie Hong at jackie.hong@yukon-news.com

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