A lawyer’s view on new mandatory minimum sentences
By Kirk Tousaw
In Nov. 2012, the Harper Conservative government ushered in new mandatory sentencing legislation for certain Controlled Drugs and Substances Act offences. Despite criticism from outside and inside government, and clear evidence that such sentences are harmful to the criminal justice system and society, the ideologically-driven rules are now law and are binding on judges throughout Canada.
These draconian punishments radically change the risks involved in producing and distributing cannabis, even for medical purposes. If someone is convicted of the offence of trafficking or possession for the purpose of trafficking, and the amount of cannabis (or cannabis-based products) weighs over three kilograms, (6.6 pounds) the mandatory jail terms apply. Keep in mind, edible makers, that the entire weight of your product will count—not just the weight of the actual cannabis used in the product.
Offenders will be sentenced to one year in jail if the crime is committed by organized crime, if the accused uses or threatens violence, or if the person has been convicted or imprisoned for a designated substance offense (meaning just about anything but possession) some time in the prior 10 years.
Offenders will be jailed for two years if the crime is committed in or near a school, school grounds, or any public place usually frequented by persons under 18; in prisons or on their grounds; or if the offender uses the services of or involves a person under 18 years of age. The legislation is not clear on what “near” means, nor does it detail what a “place usually frequented by persons under 18” might be.
Cannabis farmers also face long mandatory jail terms. The penalties imposed depend on the number of plants and whether any aggravating factors are present.
The jail term is six months if six to 200 plants are produced for the purpose of trafficking and increases to nine months if factors are present. Produce between 201 and 500 plants, for any reason, and you will spend one year in jail, with the term rising to 18 months if any aggravating factors exist. Finally, producing 501 or more plants will result in a two-year jail sentence, or three years if any aggravating factors are proven.
The aggravating factors applicable to the production offence are: the person used real property that belongs to a third party in committing the offence; if the production constituted a potential security, health or safety hazard to persons under the age of 18 yearswho were in the locationwhere the offence was committed or in the immediate area; or if the production constituted a potential public safety hazard in a residential area; or the person set or placed a trap, device or other thingthat is likely to cause death or bodily harm to another personin the location where the offence was committed or in the immediate area, or permitted such a trap, device or other thing to remain or be placed in that location or area.
The Harper government failed to provide clarity in the legislation, leaving Canadians to wonder precisely what a “potential security” hazard is and what the “immediate area” of the offense might be. With the public, and even some judges, apparently convinced that producing cannabis is automatically a safety hazard, one can envision these aggravating factors being applied with far too much vigor.
As if this was not bad enough, the legislative changes have other effects. It used to be that I could make a strong case at sentencing that medical cannabis producers and distributors should receive a discharge. That is, a finding of guilt but no entry of a criminal conviction. Unfortunately, that is no longer available to anyone who sells cannabis or possesses it for the purpose of selling it (if the amount is over three kilos). Nor is a discharge available to anyone who produces cannabis—even those who produce less than six plants or who are growing it for their own personal use.
Relatedly, offenders convicted of selling (or possessing with the intent of selling) more than three kilograms of cannabis, and producing any amount of cannabis, are also no longer eligible for Conditional Sentence Orders (CSO). A CSO is a custodial sentence served in the community—house arrest, in other words. This was a common sentence imposed on first-time offenders. The idea behind it is to impose a severe sanction, but to also allow the person to be a productive member of society, work, take care of their family, and avoid the devastating negatives experienced in jail. Thanks to the Harper Conservatives, this is simply no longer available to judges.
There are some bright spots in an otherwise bleak future for the Canadian criminal justice system. A judge can refuse to impose the mandatory sentence if the offender is not given notice, before entering a plea, that the Crown intends to seek the punishment and prove any necessary elements of the crime. A judge can also avoid imposing the mandatory prison time if the accused person successfully completes a period of court-ordered drug counseling.
Finally, the Canadian Charter of Rights and Freedoms may provide some assistance to citizens facing these draconian punishments. Section 12 of the Charter the imposition of cruel and unusual punishments. The Québec Criminal Lawyers Association has already filed suit in the Québec courts seeking a declaration that the Harper incarceration agenda violates the Charter.Individual accused can make similar challenges when the time comes.
For now, however, the Harper Conservatives’ mandatory sentencing regime is valid law and is being applied to jail Canadians whose only crime is growing or selling a relatively safe plant that a million Canadians consume each year for medical purposes.
Kirk Tousaw, JD, LL.M., is a barrister and social justice advocate practicing primarily in British Columbia, Canada. His work focuses on helping the victims of cannabis prohibition by providing vigorous defence of possession, trafficking, and production charges at all levels of Court. He has litigated several successful Charter challenges including R v. Beren and R v. Smith, both of which resulted in the Court finding that Health Canada’s Marijuana Medical Access Regulations were arbitrary and too restrictive. He can be reached by email at <email@example.com> or by telephone at 604-836-1420.