This Thursday, Justice Michael Code of the Superior Court of Justice will rule on whether the two and three year minimum sentences for growing 500 or more marijuana plants without a license violates the Charter.
The case is called Her Majesty the Queen and Hai Thi Pham. I argued the case for the defence, along with Kim Schofield.
A bit of background about this kind of issue. First, what does it mean to say that a minimum sentence violates the Charter of Rights and Freedoms?
Under section 12 of the Charter, Canadians have the right to be free from cruel and unusual punishment. To say that a sentence is cruel and unusual is another way of saying that it is grossly disproportionate.
Minimum sentences come into trouble when they apply to a crime that can be committed in a wide variety of situations and locations along the moral spectrum.
Many crimes don’t fit into this category. Take murder, for example. The non-consensual termination of another person’s life violates an ancient and universally accepted social norm. There are very few situations one can fathom where a murder would be anything but condemned.
Thus, the Criminal Code mandates at least ten years in jail for murder. That’s unlikely to be seen as a grossly disproportionate social response.
At the other extreme are cases like growing marijuana. When the Conservatives imposed a two-year minimum sentence for growing more than 500 marijuana plants – three years if there was a potential safety hazard – their goal was to target commercial marijuana grows for recreational purposes.
The logic was that underground marijuana grow operations bring organized crime into residential neighbourhoods and this justified a serious sentence.
The problem of course is that often people commit this crime without any serious moral failing. Think of those who have grown marijuana for altruistic reasons – to help the seriously ill – but fail to get licenses from Health Canada. They don’t deserve a two or three-year sentence.
Some unlicensed growers fill production gaps in their community and are heroes to thousands of the gravely ill.
Others have been convicted of growing marijuana because they’ve been duped or lied to by commercial growers, tricked into thinking that they were growing a licensed crop of marijuana. Their “crime” is also an example of their victimization.
Prosecutors may think that an accused person is lying when they make their “duped” defence. One cannot fault a prosecutor for being suspicious.
But if the accused is not lying, poor them, because they have no defence. They helped grow more than 500 plants without a license and would go to jail under the Conservative mandatory minimums for two or three years. Ignorance of the law, so goes the old dictum, is no defence.
These are not merely hypothetical applications of the law. They involve real, reported cases that we presented in court.
It is thus fairly easy to see how these mandatory minimums fall short of the mark. The most recent Supreme Court case on the issue, R. v. Lloyd, formed a key part of our argument. In it, the Court stated the following:
As I have already said, in light of Nur, the reality is this: mandatory minimum sentences that, as here, apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional. If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences.
I am confident that this Thursday will mark another positive step in striking down laws that stand in blatant disregard for the Charter.
R. v. Lloyd, 2016 SCC 13