About 40 supporters of David Sylvestre, 54, a former candidate for the Green Party of Ontario, crowded into the Superior Court of Justice as Sylvestre’s case was heard. Justice Robbie Gordon presided, at different points admonishing the crowd for their outbursts, warning them that they were doing Sylvestre “no good” by refusing to behave.
Presentations by defence lawyer Denis Michel and federal prosecutor Denys Bradley took the better part of the morning. The Crown was seeking a jail term between nine and 12 months, while the defence sought a conditional discharge or house arrest.
Michel argued Sylvestre didn’t deserve jail because he was growing marijuana to help treat his severe diabetes, had no commercial motive and did not participate in the drug trade. He said his client’s diabetes had gotten so severe by 2006, he could no longer work. He took several physician-prescribed drugs, but had to stop because of the side-effects, Michel said.
“So he went looking for alternative medicines, or what he calls a miracle cure,” Michel told Gordon. “He knew (growing marijuana) was illegal, your honour, that’s not in question.”
But the benefits of the pot were so great, Sylvestre’s health dramatically improved, his lawyer said.
“And he is enjoying life once again, your honour.”
And outside the marijuana cultivation charges, he’s someone who has led an exemplary life, helping others and never having any problems with the law.
“He is someone who is helping his community,” Michel said.
While Sylvestre has applied to Health Canada for a medical marijuana exemption, his application has not yet been granted, he told the judge.
But Gordon questioned whether someone who was caught with so much drugs could reasonably argue he was only growing plants for his own use. Under Sylvestre’s application to Health Canada, he was seeking the right to consume eight grams of pot a day; the thousands of grams he was caught with far exceeds that amount.
“It seems an inordinate amount to me,” said the judge. “It strikes me that it can’t all be for his personal use."
Michel said that his client has a background in chemical engineering and was trying to extract a specific chemical compound to help treat his disease.
“He was not trying to mass produce,” he said. “And remember, if not for people with beliefs such as Mr. Sylvestre, we wouldn’t have alternative medicines.”
And speaking on his own behalf, Sylvestre said the large amounts were at least partially due to the fact he had never done it before, but has extensive gardening skills. When he started growing, he didn’t know how much his operation would produce.
“But there was never any monetary profit motive,” Sylvestre said. “I sold none of this to anyone.”
He has experience growing community gardens, he said, adding that his late father went to an agricultural college. His knowledge of farming and chemical engineering combined to make him a very successful pot grower, he said. One of the arresting officers even asked him how he got the plants so big.
“It was a synergy of all that I have learned,” he told Gordon.
The Crown argued that recent court rulings have handed out jail time for grow-ops on the scale of Sylvestre’s, even in cases where the accused had no prior criminal record. And the fact is, Sylvestre was contributing to the drug trade in Sudbury, Bradley said.
“Without Mr. Sylvestre, we do not have another 36 pounds of marijuana; we do not have 12 pounds of (cannabis) oil,” he said. “The reason we have these types of drugs in our community is because of grow-ops like the one Mr. Sylvestre had.”
Those comments prompted outbursts from the crowd, and a warning from Gordon for people to behave.
Bradley continued, saying that the charges were laid three years ago, yet Sylvestre still doesn’t have the medical marijuana exemption.
“And a conditional sentence is simply not appropriate given the scale of (Sylvestre’s) operation,” he said. “Only sending Mr. Sylvestre to real jail can send the message … that it’s not worth the risk to produce marijuana.”
Gordon called a recess while he deliberated, and the crowd headed outdoors to wait. The smell of marijuana outside the Elm Street courthouse was present before the case began, and during the break, a man with a medical marijuana exemption lit up a joint outside.
He was seized by police, sparking a melee that had the crowd yelling obscenities at the officers. The accused resisted police efforts to take him into custody, while some witnesses accused police of shoving him roughly up against the wall.
Paramedics and an ambulance were called, and several more police cruisers showed up. Despite calls from Northern Life looking for comment, police haven’t said whether they will proceed with charges against the man.
After the scene outside, there were more police in the courtroom after the break ended. They could be heard discussing how they would get Gordon out of the courtroom safely if he sentenced Sylvestre to jail time and the crowd got out of hand as a result.
However, Gordon came back and sentenced Sylvestre to house arrest. He first apologized to the crowd for his harsh words earlier, explaining to them that it’s his job to keep order in the court and that spectators aren’t allowed to disrupt the process of justice.
As far as his verdict, Gordon said he believed Sylvestre when he said he wasn’t growing the pot to sell and make money from it, a fact that played a major role in his decision not to send him to jail.
“I’m not naïve enough to believe that (the pot) wasn’t shared with others,” he said. “And I don’t believe that his use of marijuana will stop.”
But he does believe Sylvestre’s promises to stop growing it and proceed with his medicinal marijuana application, Gordon said. The fact that he has no criminal record, was not directly participating in the drug trade and was not profiting from the grow-op meant that not giving him jail time was an option in this case.
“This is one of those rare occasions that a conditional sentence is appropriate,” Gordon said, as the crowd applauded and cheered. “And this is no slap on the wrist.”
As part of his sentence, Sylvestre must be present to answer the phone whenever officials call to ensure he is there. He is allowed out for medical appointments, and from 10 a.m. to 4 p.m. on Saturdays. He is prohibited from owning a weapon and forfeits everything that was seized when he was arrested to the Crown.
After the decision was handed down, Bradley said a decision on whether to appeal the sentence would take some time and debate.
“I don’t make those decisions,” he said.
For his part, Sylvestre said he was relieved to avoid jail, but wasn’t happy with the house arrest. He thinks a more appropriate sentence would have been a conditional discharge. In fact, he said he disagreed with much of the approach his lawyer took.
“I should really have just represented myself,” he said, but didn’t because he needed someone who understood the law and how the court system worked.
While not directly admitting he will keep smoking pot, Sylvestre hinted that he will keep using the drug to treat his diabetes and hopes to have his medical marijuana exemption in place soon.
“The fight continues,” he added.