Mandatory sentence struck down by court
The B.C. Court of Appeal has struck down as cruel and unusual punishment the six-month mandatory jail sentence for growing between six and 200 marijuana plants for the purposes of trafficking.
The high court decision, which echoed previous rulings that denounced as unconstitutional other former Tory tough-on-crime provisions, underscored the new federal Liberal administration’s tardiness in fulfilling promises to review such laws.
The decision pointed out that sea-changes in social attitudes, to which the Conservative government seemed oblivious, must be taken into account and “energize” Charter interpretations.
“Values are not immutable,” explained Justice Gregory Fitch, writing with the support of Chief Justice Robert Bauman and colleague Peter Willcock.
“They change in response to changing social conditions, social sentiments and expectations, evolving human knowledge, and technological advancement. For this reason, the Charter must adapt to changes in social context and not remain frozen in the past.”
This drug-trafficking provision was enacted as part of the 2012 Safe Streets and Communities Act, which doubled the maximum sentence from seven to 14 years and eliminated conditional sentences for producing marijuana.
“Assessing whether the mandatory minimum term of imprisonment applicable in this case is grossly disproportionate requires consideration of widespread changes in social attitudes toward small-scale, non-commercial marijuana production and use,” Fitch wrote. “The court cannot blind itself to these changes, or to the different policy and legislative choices currently being debated to address the complex issues that arise in this area.”
Prosecutors insisted, however, that compassion and “smallscale” had nothing to do with the case in question — Keith Steven Elliott, 42 at the time, was working at a lucrative commercial Kelowna growing operation feeding the black market. The 195-plant guerrilla garden reputedly produced about 24.4 pounds (about 11 kilos) of bud, which would have fetched between $78,000 and $117,000.
Elliott was paid $20 an hour, given room and board and pot in exchange for trimming the plants and doing chores in the grow-owner’s home for about 18 months until a police raid in June 2013.
With no previous record or substance-abuse problems, he blamed his poor decisions on being down on his luck.
Afterward, he moved in with his brother in Surrey and found work as a heavy equipment operator in construction.
Former B.C. Supreme Court Justice Lauri Ann Fenlon, now on the appeal bench, decided the mandatory sentence was unconstitutional, and in May 2016 sentenced Elliott to only two years probation because he had turned his life around.
Irrespective of the mandatory provision, the Crown argued that Elliott’s sentence was a marked departure from punishment given similar offenders.
Even Fitch agreed there was nothing inappropriate about imposing the mandatory minimum in this case, but he declined to second-guess Fenlon.
The constitutional infirmity of the provision rested, he said, not on the law’s application to Elliott, but to its failure to draw a distinction between “those who produce and sell significant quantities of marijuana for commercial gain and those who grow small amounts to give to friends in need.”
“The real issue in this case is whether reasonably foreseeable applications of the mandatory minimum will result in the imposition of grossly disproportionate sentences on others,” he emphasized.
For instance, the Crown conceded a university student growing seven plants intending to keep one for himself and give six to friends would face the sixmonth mandatory.
Similarly, a hypothetical 65-year-old woman, using pot to relieve chronic pain, growing seven plants in her garden, intending to keep one and give six to ailing friends in a support group, would also fall within the ambit of the punishment.
“The imposition of a sixmonth term of imprisonment on the hypothetical 65-year-old small-time grower is so excessive that most Canadians would be shocked to learn that such an offender would be required to serve at least six months in prison,” Fitch concluded.
The lack of proportionality is also why the Supreme Court of Canada previously struck down two other Tory minimum sentencing provisions.
It ruled unconstitutional a firearms provision that caught too wide a range of conduct — from the outlaw who carried a loaded prohibited or restricted firearm to the responsible gun owner guilty of no more than a licensing infraction.
In the second case, it struck down another drug-trafficking provision for similarly capturing not only serious illicit dealing but also much less blameworthy behaviour.
“We’re pleased with the result, but people still have to go to court to challenge these mandatory minimums instead of (the Liberals) abolishing them,” Elliott’s lawyer John Conroy complained.
“My concern is the government not undoing the Harper legacy and getting us back to where we were — especially in light of the legalization legislation. We will see if they appeal.”
The Liberals have committed to legalizing recreational marijuana use by July 2018, but thousands continue to be charged and prosecuted under existing laws.
My concern is the government not undoing the Harper legacy and getting us back to where we were.