Pubdate: Tue, 29 Sep 2015
Source: Globe and Mail (Canada)
Copyright: 2015 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Sean Fine
Page: A1

ONTARIO JUDGE STRIKES DOWN MANDATORY MINIMUM SENTENCE FOR GROWING POT

An Ontario judge has struck down one of the Conservative government's
signature drug laws - a six-month minimum jail term for growing
between six and 200 marijuana plants for the purpose of
trafficking.

The ruling came after a constitutional challenge brought by a man who
had pleaded guilty to working in a grow-op. The man, Duc Vu, 42, of
Brampton, Ont., called the minimum sentences for growing
marijuana"cruel and unusual punishment" under the Charter of Rights
and Freedoms. And the judge agreed.

Mandatory minimums have been a pillar of the federal government's
approach to crime, with the Conservatives creating 60 mandatory
minimum prison terms for drugs, guns, sex offences and other crimes,
according to the Justice Department.

The ruling applies only in Ontario, although it could be influential
if similar challenges occur in other provinces. The Public Prosecution
Service of Canada could not be reached for comment on whether the
ruling would be appealed. The ruling follows a Supreme Court of Canada
decision in April throwing out a three-year minimum prison term for
illegal gun possession. Ontario Superior Court Justice Bruce Durno' s
reasoning was largely the same as the Supreme Court's: People who have
licences to do something legally, such as growing medical marijuana,
may be caught up by minimum sentences, even if they just made a
mistake and grew more than they are allowed.

That does not make them criminals, according to Justice Durno. The
Supreme Court said the same thing about licensed gun owners who make a
mistake about the terms of their licence - storing a gun at their
cottage when it is allowed only at their home, for instance.

Justice Durno's reasoning was based on the controversial foundation of
the "reasonable hypothetical" - not the case of the man accused in
court but a made-up case that might happen. ( The Supreme Court has
said it is the nature of the law that is at issue, not simply whether
it fits the individual who is on trial.) Not even the man's defence
lawyer, John Norris of Toronto, was able to cite a single case where a
medical licensee had been charged with this crime.

But Justice Durno said that, by chance, he was sitting at another
courthouse where a man with a medical licence to grow 122 plants was
facing charges because he had produced 265 plants. Even without that
case, though, he said it was not too far-fetched to imagine someone
mistakenly growing more than permitted.

"The deprivation of liberty occasioned by a six-month jail term would
be grossly disproportionate for a law- abiding citizen who made an
honest mistake," Justice Durno wrote in his 97 page ruling issued
Friday, noting that the sentence can't be served on weekends or in the
community, and can result in the loss of a job or educational
opportunity, and family disruption.

Meara Conway, a lawyer who also represented Mr. Vu, applauded the
ruling. "Parliament is attempting to micromanage the sentencing
process and wrest control from trial judges," she said.

Last October, a B. C. provincial court judge refused to apply the
minimum and gave an ill man who grew 414 plants in his home an
absolute discharge, but that judge did not strike down the law.

Justice Durno also found to be unconstitutional mandatory extra time
where the marijuana production endangered public safety ( by creating
the risk of an explosion, for example). He struck it down, he said,
because prosecutors were not required to show that a convicted person
knew of the danger - a so-called gardener who tended to the plants
without knowing anything more about the operation automatically faced
this additional minimum.

In Duc Vu's case, police with a search warrant found him hiding inside
a clothes dryer. There were 1,020 marijuana plants, 12 oscillating
fans, 42 shrouds and lights, and a hydro bypass so the house could
steal large amounts of electrical power. He pleaded guilty to
production of marijuana and theft of hydro, and Mr. Norris asked that
he serve one year in jail, saying he has three young children and a
sick wife to support.

Justice Durno said the sentence was not grossly disproportionate for
Mr. Vu, who had once received a four-month jail term for the same
offence. The mandatory minimum was two years with a third year for
endangering public safety. ( For between six and 200 plants, the extra
minimum was three months.) Through a peculiarity of the ruling, Mr. Vu
may yet have to face the mandatory two years. For now, Justice Durno's
ruling applies only when 200 or fewer plants are involved.

The judge has asked federal prosecutors and Mr. Norris to return to
court in November to discuss whether in striking down the minimums
when the possibility of a mistake, rather than criminal intent, seems
most likely, he also needs to toss out the rest of the mandatory
minimums when more plants are involved.
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MAP posted-by: Matt