British Columbia

B.C. judge says minimum sentence for marijuana production cruel and unsual

B.C. court is second to reject mandatory minimum for growing pot for purpose of trafficking

marijuana

A B.C. judge says a six-month mandatory minimum sentence for growing marijuana for the purpose of trafficking is cruel and unusual punishment. (Marina Riker/Associated Press)

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A B.C. Supreme Court judge says sending someone to jail for a minimum of half a year for growing more than six pot plants for the purpose of trafficking is cruel and unusual punishment.

Justice Lauri Ann Fenlon's ruling is the latest in a series of judicial findings to reject the former Conservative government's legislation while citing a belief not all marijuana producers are criminals.

'Abhorrent to most Canadians'

The law in question forces judges to hand a six-month mandatory minimum sentence to anyone growing between six and 200 marijuana plants for the purpose of trafficking.

But Fenlon said since the legal definition of trafficking can include giving pot away, the law might inadvertently incarcerate students or sick people for sharing home-grown pot.

"I note that a six month sentence is typical for a first time trafficker involved in a relatively sophisticated commercial dial-a-dope operation," Fenlon wrote.

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The decision found a mandatory minimum could inadvertently jail students or sick people for sharing home-grown pot. (iStock)

"Imposing that sentence on a 19-year-old student or a migraine sufferer who is growing six plants intending to share them with friends would, in my view, be abhorrent to most Canadians."

Fenlon's decision echoes a ruling last fall by an Ontario Superior Court judge who also found the mandatory minimum amounted to cruel and unusual punishment, a violation of Section 12 of the Canadian Charter of Rights and Freedoms. That decision is currently under appeal.

The decisions in each case apply in their respective provinces only.

The mandatory minimums were introduced in 2012 as part of the so-called "tough-on-crime" agenda of then-Prime Minister Stephen Harper.

Hypothetical situations

The accused in the B.C. case, Keith Steven Elliott, received free room and board from the operator of a grow operation in exchange for trimming and planting 195 marijuana plants located in his basement.

The principal of the operation received a six month sentence after pleading guilty to possession for the purpose of trafficking. Elliott argued it would be unfair for him to receive the same sentence.

Blair Marijuana 20160224

Liberal pot point man Bill Blair, parliamentary secretary to the Minister of Justice, says marijuana laws will be enforced pending the drug's legalization. (Sean Kilpatrick/Canadian Press)

The judge did not find the sentence unreasonable as applied to Elliott.

But to determine whether the mandatory minimum violates the Charter, she had to consider hypothetical situations in which a six month jail sentence might be considered cruel and unusual.

One of those involved a hippy living "an otherwise law-abiding life" who grows six plants to give to family and friends.

The other imagined a 65-year-old migraine sufferer who "grows six plants in her suburban vegetable garden and gives some of the product to two other friends who also suffer from migraines."

Fenlon noted that prior to 2012, those types of offenders might typically receive conditional discharges, suspended sentences, probation or community service.

"In my view (the law) casts its net too broadly and catches offenders and offences involving little moral fault and little or no danger to the public," Fenlon wrote.

"The effect of the mandatory minimum in the section in issue is to incarcerate for six months small offenders for whom such a sentence in grossly disproportionate."

Decisions await Liberal government

Fenlon's decision underscores a number of decisions facing Prime Minister Justin Trudeau's new government.

Last month, a federal court judge found that medical marijuana patients have the right to grow their own pot. The judge in that case has given Ottawa six months to come up with new rules to govern the production of medical marijuana.

The government has said it is committed to legalizing marijuana, but has not given a time frame; in the meantime, Ottawa recently announced plans to continue enforcing the existing laws.

The Liberal administration has also promised to review mandatory minimums for a number of offences, some of which judges across the country have found to be in violation of the Charter.

Fenlon has given both the defence and the Crown in the most recent case three months to decide whether or not she needs to hold a hearing to determine if the violation of rights is warranted under another section of the Charter.

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