An Old Crow woman has successfully appealed her sentence for a 2016 assault after a Yukon Supreme Court judge found she was unfairly penalized for her unrelated marijuana consumption.
Lena Josie, now 57, was originally given six months’ probation after pleading guilty to assault for punching another woman in the face. But Yukon Supreme Court Justice Ron Veale ruled that sentence, which would have given Josie a criminal record, “unfit.” Instead, he gave Josie a conditional discharge which does not come with a criminal record.
Trial judge Michael Cozens, who had also considered a conditional discharge, had focused on Josie’s daily marijuana use when sentencing her, even though it was not an issue raised by either the Crown or defence.
“I still have that problem that a discharge for someone who says that they are going to continue on a daily basis, which will facilitate trafficking or cultivation for possession for the use of marijuana simply is contrary to the public interest,” Cozens said in his reasons.
“The remorse issue and the issue of vigilante justice would not in themselves have precluded me from granting a discharge, but when I throw in the marijuana issue, it is a bigger issue for me.”
Cozens ultimately gave Josie six months’ probation instead of a conditional discharge. She appealed her sentence, with arguments heard before Justice Ron Veale Nov. 30, 2017.
In his decision released Jan. 16, Veale wrote that Cozens had “erred” in his sentencing when Cozens compared Josie’s case to one where the offender had pleaded guilty to possession of marijuana.
“The denial of a conditional discharge… may have been appropriate for that particular offence and offender, but it is not appropriate for (Josie),” Veale wrote.
Among other things, Veale pointed out, the offender in the possession case had two small bags of marijuana, $350 and a cellphone, and also defiantly told the court he wasn’t going to stop smoking marijuana. Josie’s marijuana use, meanwhile, had nothing to do with the assault, and she had spoken about her consumption in the context of a pre-sentencing report.
“In my view, (Josie’s) case is distinguishable as there was no illegal drug activity in her offence and her disclosure of marijuana smoking was appropriate for her counselling and pre-sentence report and not a disclosure for which she should be penalized in her sentencing,” Veale wrote.
“I am of the view that 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 woman who has taken counselling, apologized, and taken responsibility for her offence… I find that a discharge in these circumstances would not affect the public’s confidence in the administration of justice.”
Calling Cozens’ sentence “unfit,” Veale allowed Josie’s appeal and granted her a conditional discharge that followed the same conditions as her probation sentence.
In an interview, Josie’s lawyer, Vincent Larochelle, said his client was “excited and glad” with Veale’s decision, and that the successful appeal will be important in future cases where offenders have an otherwise clean or sparse criminal record.
“For those individuals, I think it’s going to be significant that they can be honest and forthcoming with their (probation officers) when they’re going to sentencing and say, ‘Yeah, you know what? I have a problem with this or that drug,’ whether it’s marijuana or any other drug,” he said.
“…What this decision is, if your drug use is not related to your criminality, then there’s nothing to stop you from asking for a conditional discharge, provided that the other circumstances you need to point to exist in your particular case.”
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