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SENTENCING - Non-Criminal Code and regulatory offences - Controlled drugs and substances - Cultivation or production - Sentencing precedents or starting point

Monday, July 24, 2017 @ 8:20 AM  

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Appeal by the Crown from a declaration that the mandatory prison term under s. 7(2)(b)(i) of the Controlled Drugs and Substances Act (CDSA) was unconstitutional. The provision stipulated that anyone who produced marijuana, except as authorized under the regulations, was guilty of an indictable offence and liable to a mandatory minimum term of six months’ imprisonment, if the number of plants produced was between six and 200 and the production was for the purpose of trafficking. In the event the declaration of unconstitutionality was upheld, the Crown appealed from the suspended sentence and two years’ probation imposed by the sentencing judge on Elliott following his convictions for producing marijuana and possessing marijuana for the purposes of trafficking. Out of work, Elliott accepted Rico’s offer to pay him $20 per hour to trim his 195 marijuana plants. He later agreed to move into the home where the grow operation was located, and to build a sundeck and tend to the plants in exchange for free room and board and marijuana for personal use. Elliott was charged in 2014, after working for Rico for almost two years. He was a 42-year-old first offender. Following the charges, he had resided with his brother and worked in construction. He acknowledged his wrongdoing, stating he was motivated by his poor financial situation. He had no substance abuse issues. The judge characterized the grow operation as moderately sophisticated, with a potential value of up to $117,000. She accepted that Elliott was remorseful and found that he had made extraordinary efforts to turn his life around. The judge did not find the mandatory six-month sentence disproportionate to Elliott’s situation, but concluded that s. 7(2)(b)(i) cast its net too broadly and caught offenders and offences involving little moral fault and little or no danger to the public. Specifically, a six-month mandatory jail sentence would be grossly disproportionate in relation to the hypothetical of a student or migraine sufferer, with no prior criminal record, growing six plants for personal use and to share with friends. The judge concluded that imposing the mandatory jail term in such circumstances would be abhorrent to most Canadians in declaring the mandatory minimum sentencing provision unconstitutional. She considered a suspended sentence appropriate for Elliott based on the exceptional circumstances of his remorse and sense of responsibility, and the concrete efforts he had made to turn his life around. The central issue on appeal was whether s. 7(2)(b)(i) of the CDSA violated the guarantee in s. 12 of the Canadian Charter of Rights and Freedoms (Charter) against cruel and unusual punishment because it mandated the imposition of a grossly disproportionate sentence in reasonably foreseeable cases.

HELD: Appeal dismissed. While the mandatory minimum sentence in section 7(2)(b)(i) of the CDSA was not grossly disproportionate as it applied to Elliot, the unconstitutionality finding was upheld. The provision captured much more than the serious drug crimes the legislation was designed to address. At its least culpable end, the provision captured otherwise law-abiding citizens who grow relatively small quantities of marijuana to share with others. In reasonably foreseeable applications of the law, it also captured people who produced marijuana for what they genuinely consider to be altruistic reasons. Offenders with little moral culpability would face the same sentence as those involved with lucrative commercial grow operations connected with organized crime. The fact that there was a regulatory scheme providing access to marijuana on medical grounds was not relevant to the constitutionality analysis. There was no basis to interfere with the sentence imposed on Elliott. The judge gave adequate reasons for departing from the normal sentencing range of at least four months’ imprisonment. Sentence: Suspended sentence; two years’ probation -- Controlled Drugs and Substances Act, ss. 5, 7.

R. v. Elliott, [2017] B.C.J. No. 1101, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., P.M. Willcock and G.J. Fitch JJ.A., June 9, 2017. Digest No. TLD-July242017003