Pubdate: Wed, 07 Sep 2016
Source: Toronto Sun (CN ON)
Copyright: 2016 Canoe Limited Partnership
Author: Michele Mandel
Page: 5


There goes another Harper tough-on-crime law out the judicial window.
Because, of course, we wouldn't want to be too hard on a woman farming
1,100 pot plants in the middle of a Jane St. highrise apartment building.

In a landmark ruling, an Ontario judge has struck down yet another of
the former Conservative government's mandatory minimum sentences as
unconstitutional, this time the two-year minimum jail term - with an
extra year for endangering public safety - for growing more than 500
marijuana plants.

In 2015, Hai Thi Pham was convicted of tending an elaborate commercial
pot grow-up in a three-bedroom apartment at 2755 Jane St. Toronto
Police found 1,110 plants being grown under 19 high-pressure sodium
lights connected to 20 ballasts that made them compatible with
1,000-watt lightbulbs.

There were empty pots, hoses, three oscillating fans, venting
equipment, carbon filters, five timer boards, and fertilizer inside
the apartment. Black mold was seen on the walls and piles of dirt on
the floor.

Drug officers estimated the value between $390,000 and $468,000 if
dried and sold by the kilo and more than $1.5 million if sold by the

Pham's lawyers argued the 45-year-old mother of two shouldn't be
sentenced to the mandatory minimum mandated in the 2012 amendments to
the Controlled Drugs and Substances Act. They challenged the law not
because a three-year sentence would be "grossly disproportionate" in
her particular case - they actually agreed it wouldn't be - but
because it could possibly affect other, less blameworthy offenders
where it would amount to cruel and unusual punishment.

Justice Michael Code agreed, striking down the law, and sentencing
Pham instead to 10 months in jail.

The ruling follows a similar one by a Brampton judge almost a year
ago. Justice Bruce Durno declared the minimum six-month jail term for
growing between six and 200 marijuana plants for the purpose of
trafficking as unconstitutional.

His reasoning was one followed by Code in this case: People legally
licensed to grow pot might also get penalized by these stiff mandatory
minimums even if they had simply made a mistake and grew more than
they were allowed.

"Cases 'may reasonably arise' where licences authorizing 'more than
500' plants have expired and not been renewed in a timely way," Code
said, "or where the licences do not cover the size or scope of a large
commercial operation but an unsophisticated accused with a minor role
honestly believes that they do."

In judicial speak, they call these "reasonable hypotheticals." And in
such possible scenarios, the mandatory minimum two-year sentence is
"grossly disproportionate" and violates the Charter, the judge wrote
in his ruling released Sept. 1.

'More punitive'

Thanks to the Code and Durno decisions, we now have a situation in
Ontario where mandatory minimum sentences no longer exist when it
comes to illegal pot cultivation. Pham's lawyer, Kim Schofield, argues
they weren't necessary in the first place. "These weren't cases where
the courts were more lenient. In fact, they were becoming more punitive."

It sure didn't seem that way.

Mandatory minimum sentences were championed by the former Conservative
government as a legislated way to curtail courts too often seen as
soft on crime. But now that Harper-era agenda is being systematically
dismantled by a judiciary which never liked being told what to do.

The Supreme Court has thrown out the three-year minimum for illegal
gun possession and the mandatory, one-year minimum sentence for a drug
crime when the offender has a record with a similar charge. The chief
justice has signalled that other mandatory minimums are ripe for
overturning because they cast too wide a net and don't take individual
circumstances into account.

They want to retain their ability to judge each case by its

That would be all well and good if the sentences then handed down
actually fit the crime.

Instead, a woman who was operating a pot factory in the middle of a
busy residential building for at least a year was sentenced to just 10
months in jail. And she's already out on bail, of course. She's
appealing her conviction.
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