Mi’kmaw man gets house arrest for roadside cannabis sales

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In a Nova Scotia first, a judge has sentenced a Mi’kmaw man to three months of house arrest for running a roadside cannabis dispensary that operated among many other pot peddling outfits in a First Nations community.

Darren Charles Marshall argued unsuccessfully that in running an operation called The Flower Barn in Millbrook First Nation, “he was exercising a treaty or aboriginal right to traffic in cannabis,” according to Associate Chief Judge Ronda van der Hoek, who sentenced him recently in Truro provincial court.

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“There was no foundation to support such a conclusion, and the court dismissed the application before it even got off the ground,” the judge said. “It is worth noting that a belief in a right is quite different from an understanding based on a considered analysis of a situation. Our society is democratically organized around laws and determining that a law does not accord with one’s preference does not entitle one to breach it.”

The judge noted a “proliferation of illegal cannabis trafficking operations across the province on First Nations’ lands and the RCMP are actively engaged in shutting them down. This, it was argued, is the first sentencing decision to be delivered in such a matter. The Crown characterizes marijuana trafficking as serious and Mr. Marshall’s degree of responsibility as high. The court agrees with those characterizations.”

The judge imposed a six-month conditional sentence on Marshall for possessing cannabis for the purpose of selling it, and a 12-month conditional sentence, to be served concurrently, for the Excise Act charge of “receiving for the purpose of sale a cannabis product that is required to be packaged and stamped.”

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For the first three months of his sentence, Marshall “will be on house arrest with limited opportunity to leave his dwelling. For the next three months he will be subject to a curfew from 10 p.m. till 6 a.m.,” van der Hoek wrote in her decision dated March 31.

She also issued forfeiture orders for seized items, “including the building, and the cannabis-related items, as agreed to by counsel,” and fined Marshall $8,762.50.

The forfeited items include 3,000 grams of dried cannabis, 49,000 milligrams of cannabis extracts, and 99,276 milligrams of cannabis edibles.

Mounties fielded “community complaints” about The Flower Barn, said in her decision.

“The RCMP warned Mr. Marshall that his cannabis trafficking business was illegal, yet he continued to operate outside of the legal regime,” said the judge. “He did so because he believed he had an Aboriginal and/or treaty right to do so. There is no suggestion that the business operated as a compassion club — this was a commercial enterprise.”

The Crown — noting the proliferation of illegal dispensaries — “emphasized the need to deter others who are currently operating illegally and those who may aspire to set up illegal commercial marijuana trafficking operations in our communities,” van der Hoek said, noting, “it is the court’s understanding that the Millbrook First Nation did not — and does not — support the operation of cannabis trafficking enterprises on its lands.”

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Marshall’s case “requires focus on general and specific deterrence,” said the judge. “The court takes judicial notice that this type of offence is proliferating in the province. It is important to send a message that the cannabis supply offered through the Nova Scotia Liquor Corporation is subject to tax that funds the health care costs arising from its use and that the product is derived from legal sources. The legal regime aims to disrupt organized crime involved in the production of cannabis and ensure that Nova Scotians purchase regulated product.”

Marshall’s lawyer also tried arguing that Nova Scotia’s “regime for lawful marijuana sales in the community was somehow inconvenient,” said the judge.

“However, an individual’s personal assessment of inconvenience, and the practical realities involved in purchasing a regulated product such as alcohol or cannabis, does not permit one to simply fire up a still or openly traffic cannabis from a baby barn on a First Nations community.”

Marshall’s lawyer “also suggested, entirely without support, that this province is engaged in conversations to legalize marijuana sales on First Nations communities,” said the judge. “The court has no information with respect to whether that is the case, and even if it is, courts sentence offenders in accordance with the law in effect at the time.”

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Marshall is related to the late Donald Marshall Jr., said the judge, “whose legacy stands for the advancement of treaty rights in the fisheries. There can be no doubt that Donald Marshall Jr. was in part an inspiration for the offender with respect to his actions. But he should also be aware that an evidentiary foundation was necessary to advance the right, and even those rights achieved in R v Marshall … are subject to the government’s lawful authority to regulate, in that case, the fisheries.”

Marshall’s lawyer argued unsuccessfully for a conditional discharge.

“A discharge could be seen as a minimal or weak deterrent, or even a low cost of doing business, and encourage those inclined to open an illegal cannabis trafficking operation,” said the judge. “It is therefore necessary that a sentence have the deterrent effect of reminding the public that even those without criminal records who traffic in marijuana will pay a heavy price. The Crown says people are watching this case to some degree and, if it is believed that an Indigenous person who wants to run a trafficking enterprise on reserve will receive a discharge, no disincentive exists. And in this case, the RCMP seized the physical building in aid of shutting down the operation.”

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