Len Josie from Vuntut Gwitchin First Nation will be appealing a judge’s decision to not grant her a conditional discharge on an assault based on the fact that she smokes marijuana. (James Munson/Yukon News file)

Old Crow woman appeals sentence, says judge unfairly factored in marijuana use

Woman denied conditional discharge because she smokes 2 joints per day

A woman from Vuntut Gwitchin First Nation will be appealing a judge’s decision to not grant her a conditional discharge on an assault based on the fact that she smokes marijuana — despite the fact her marijuana use had nothing to do with the assault.

According to court documents, Lena Josie, 56, pleaded guilty to common assault in February following an incident at an Old Crow grocery store in December 2016. Josie got into a verbal altercation with another woman at the store before grabbing her by the coat, punching her in the face and telling her to “get the fuck out of town.”

Prior to the assault, Josie had no criminal record and later claimed she’d been a “victim of violence” from the woman “some time ago,” according to a factum filed by her lawyer, Vincent Larochelle, to the Yukon Court of Appeal Nov. 15. Larochelle noted that Josie was sober at the time of the assault, a pre-sentence report was “generally positive” and that sentencing judge Michael Cozens took Gladue factors into consideration.

However, although Cozens found Josie was unlikely to reoffend, received support letters from her counsellor and wrote an apology letter, the judge wrote in his sentencing decision that Josie “admitted to smoking marijuana on a daily basis” and because of her marijuana consumption, declined to grant her a conditional discharge, instead handing down a six-month probation order.

In his arguments, Larochelle wrote that it was “clear” that Cozens would have granted Josie a conditional discharge “were it not for the fact that Ms. Josie consumes marijuana.” He took issue with the fact that Cozens cited another of his own decisions in sentencing Josie, which “essentially states that a person who will consume marijuana during the foreseeable future does not meet the public interest component of having a conditional discharge, as this ultimately facilitates the trafficking of illegal drugs in the Yukon.”

“With all due respect,” Larochelle wrote, “the reasoning is wrong. It is wrong as a matter of policy, it is wrong as a matter of law and it is wrong as a matter of fact.”

Larochelle argued that Cozens’ decision is “creating a two-tier criminal justice system, in which the vulnerable members of society are cast aside and given criminal records, while the well-to-do members of society who do not struggle with addictions can expect to receive preferential treatment.”

He also pointed out that Josie’s marijuana consumption had nothing to do with the assault Cozens was sentencing her for, noting that the probation order attached to Josie’s sentence does not include conditions to abstain from consuming alcohol or controlled substances.

“The issue was not whether the public would be generally deterred from smoking marijuana, but rather of committing assaults such as the one committed by Ms. Josie,” the factum continues.

“In the appellant’s submission, the public would be left wondering as to the logic which prevents a sentencing judge from granting a conditional discharge for the simple reason that one consumes marijuana, without any indication that the consumption of marijuana is related to the offender’s criminal behaviour.”

“What the appellant is driving at is that the fact that Ms. Josie smokes two joints per day in Old Crow does not necessarily mean that she is indirectly financing hitmen and organized crime,” the argument section of the factum concludes.

“It’s time to heed the repeated call of the Supreme Court of Canada, to heed the incessant pleas of the aboriginal communities, and to stop wielding the criminal justice system like a neo-colonial sledgehammer.”

The appeal is scheduled to be heard Nov. 30.

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

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