No jail time for grow-op

Photo: File photo

A Kelowna man will avoid jail time after the B.C. Court of Appeal upheld his suspended sentence for working at a grow-op.

A Kelowna man will avoid jail time for working on a marijuana grow-op, after B.C.'s Court of Appeal upheld a ruling on the unconstitutionality of the conviction's mandatory minimum sentence.

Keith Elliot, 42, was charged with production of marijuana and possession of marijuana for the purpose of trafficking in August 2014, after a grow-op, with 195 plants, was found in a Kelowna basement suite he was living in.

Elliot was convicted and in February 2016, a B.C. Supreme Court judge ruled that a six-month jail sentence, the mandatory minimum for growing between five and 201 plants, was “cruel and unusual” punishment, and future applications of the law would result in “grossly disproportionate sentences” on others.

The mandatory minimum was introduced in 2012 by then-Prime Minister Stephen Harper. In 2015, Ontario's Supreme Court found the minimum sentence violated an accused Charter rights as well. 

Elliot was given a suspended sentence and two years of probation. A suspended sentence means he will avoid jail time, if he abides by his probation conditions.

The Crown appealed this sentence, arguing that a six-month sentence is a fit punishment for Elliot and the suspended sentence would not deter or denounce future similar crimes. The Crown said the sentence was a “marked departure from sentences imposed on similarly-situated offenders.”

On June 9, Justice Gregory Fitch of the Court of Appeal dismissed the Crown's appeal, upholding Elliot's suspended sentence.

Elliot had been working and living at the grow-op for 1.5 years, trimming plants, building a deck and helping with household chores, in exchange for room and board in the home and marijuana for his own personal use.

He had no prior criminal record.

“(The sentencing judge) made factual findings that (Elliot) was remorseful, had accepted responsibility for his role in the offence, and had made concrete efforts to turn his life around since its commission,” Justice Fitch wrote in his decision. “The judge in this case determined to depart from the generally applicable range for reasons she clearly expressed and was in the best position to gauge.”