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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Protection against cruel and unusual punishment - Remedies for denial of rights

Monday, January 29, 2018 @ 8:25 AM  

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Appeal by the Crown from a judgment finding that the statutory minimum sentences under ss. 7(2)(b)(v) and 7(2)(b)(vi) of the Controlled Drugs and Substances Act (CDSA) violated s. 12 of the Canadian Charter of Rights and Freedoms (Charter) and declaring those provisions to be of no force and effect. A 10-month sentence of imprisonment was imposed on McGee following his guilty pleas to production of marihuana and possession of more than three kilograms of marihuana for the purposes of trafficking, contrary to ss. 7(1) and 5(2) of the CDSA. McGee was a co-principal in a grow operation containing 601 marihuana plants in his rental home. He and his wife lived in the home, which was rendered uninhabitable as a result of their grow operation and was sold for under market value by its owner, who could not afford to repair it. McGee was a 60-year-old first offender who had been unable to work due to a shoulder injury and became involved in the grow operation to replace his lost income. Section 7(2)(b)(v) of the CDSA provided that, except as authorized under the regulations, everyone who produced more than 500 marihuana plants was guilty of an indictable offence and liable to a minimum term of imprisonment of two years. Section 7(2)(b)(vi)of the CDSA increased the minimum term of imprisonment to three years where it was proven the property used to commit the offence belonged to a third party. Accordingly, McGee faced a statutory minimum sentence of three years’ imprisonment. The sentencing judge declined to impose the mandatory minimum sentence, finding that that ss. 7(2)(b)(v) and 7(2)(b)(vi) of the CDSA violated s. 12 of the Charter, the right not to be subjected to any cruel and unusual treatment or punishment. The sentencing judge determined that s. 7(2)(b)(v) could result in a grossly disproportionate sentence in reasonably foreseeable cases and that s. 7(2)(b)(vi) could result in a grossly disproportionate sentence in McGee's case. As a result, the provisions were of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982. The main issue on appeal was whether s. 7(2)(b)(v) and s. 7(2)(b)(vi) of the CDSA mandated the imposition of a grossly disproportionate sentence in respect of McGee or in reasonably foreseeable cases, thus violating s. 12 of the Charter, and if so, whether the provisions could be saved by s. 1 of the Charter.

HELD: Appeal dismissed. The sentencing judge correctly concluded that the minimum punishment of two years in s. 7(2)(b)(v) of the CDSA would be grossly disproportionate for the hypothetical offender who was a party to the offence as a result of minimal involvement in the grow operation by only supplying soil, or delivering seedlings or a bottle of nutrients to a grow site, or helping out at harvest. The three-year sentence under s. 7(2)(b)(vi) of the CDSA that would result in the presence of the aggravating factor of using a rental property was also grossly disproportionate to the punishment appropriate for McGee. No hypothetical inquiry was required. These provisions were not saved by section 1 of the Charter and they were declared to be of no force and effect.

R. v. McGee, [2017] B.C.J. No. 2658, British Columbia Court of Appeal, M.E. Saunders, S. Stromberg-Stein and L. Fenlon JJ.A., December 28, 2017. Digest No. TLD-January292018001