Pubdate: Tue, 23 Feb 2016
Source: Globe and Mail (Canada)
Copyright: 2016 The Globe and Mail Company
Author: Sean Fine
Page: A2


As Canada heads toward a new era of legal marijuana use, federal
prosecutors are still trying to jail people who grow small amounts of
cannabis in their home to sell to others, sending a tough-ondrugs
message that some say is at odds with the new approach. And they
continue to seek criminal records, and sometimes jail time, for people
charged with simple possession of marijuana for their own use.

In a case in Victoria Harbour, Ont., the public prosecution service is
seeking a six-month jail term for a man who grew 29 plants in his
home, and who sold a small amount - one ounce a week - to his friends,
what his lawyers refer to as "social trafficking." Stephen Morris is a
single father and first-time offender, and he pleaded guilty. The
prosecutor said in a legal filing he deserves six months in prison
because he grew the plants in a room adjacent to one occupied by his
teenage daughter. "It's a remarkable thing to have the government say
they want to legalize and still want to put people in jail for minor
infractions," Osgoode law professor Alan Young said.

Six months is the length of the mandatory minimum sentence the Stephen
Harper government created for growing six to 200 plants for the
purpose of selling marijuana. In an unusual twist, the prosecution in
the Morris case declared an intention to seek the mandatory sentence,
but dropped it after Mr. Morris launched a constitutional challenge
and the government changed. The challenge would have put the Trudeau
government in the uncomfortable position of defending a Harper-era
minimum sentence related to pot. But the prosecution service is still
seeking the same length of time set out in the minimum.

Federal prosecutors are also taking a hard line on possession of small
amounts of marijuana for personal use. "They're still seeking the
imposition of criminal records for people for an activity that the
government has said they would legalize right away," Ottawa lawyer
Michael Spratt said. In one case, the prosecution service asked for
jail time for a man who violated a condition of his probation by
possessing marijuana. A judge refused.

The prosecution service said in response to e-mailed questions from
The Globe and Mail that it follows practices outlined in the Public
Prosecution Service of Canada Deskbook, published in 2014. On drug
offences, the book says prosecutors should stick with the mandatory
sentence where it is supported by the facts and, as a general rule,
not discard the minimum to achieve a plea bargain. "In situations
where the facts supporting the MMP [ mandatory minimum penalty] are
present and provable, counsel should generally prosecute that offence
and the court will impose the MMP," the deskbook says.

Even so, the prosecution service maintains it is applying the same
rules after the election as it did before. "The PPSC Deskbook is in
force," spokeswoman Nathalie Houle said, refusing to comment on the
specifics of the Morris case.

Prof. Young and students participating in Osgoode Hall's test-case
program became involved in the case at the request of Raymond Morhan,
a Barrie, Ont., lawyer representing Mr. Morris who sought help
launching a constitutional challenge. The Osgoode team wrote a 141-
page legal document arguing that the courts should rule the mandatory
minimum cruel and unusual punishment, and therefore unconstitutional,
taking it off the books. Prof. Young said he intends to argue that the
court challenge should still be heard. He accuses the prosecution
service of trying to shield the mandatory minimum. "If you have it on
the books, you have leverage to get guilty pleas."

Mr. Morhan said that while the mandatory sentence remains in force, it
sets the bar higher for punishment of small growers. Canadian courts
have struck down several mandatory minimums passed by the Conservative

Both Mr. Morhan and Prof. Young say that, before the Conservatives
brought in a mandatory minimum penalty in 2012 for growing six to 200
marijuana plants, Mr. Morris would almost certainly not have done jail
time. Once marijuana use is legalized and regulations are created for
government- authorized growing and selling, behaviour such as Mr.
Morris's will be more of a regulatory offence than a crime - like
fishing without a license. He added that Mr. Morris lost his job
because of the criminal charge, and then lost his home. Mr. Young said
growing marijuana next door to his child's room is not a serious
enough transgression to justify a jail sentence.
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