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Production Charge. Judge Strikes Down Mandatory Minimums

Being found guilty of Marijuana Production Charge had recently commanded a mandatory sentence.    The Controlled Drugs and Substance Act reads Sec 7 (1) (2)(b):

  • (b) if the subject matter of the offence is cannabis (marijuana), is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years, and to a minimum punishment of

    • (i) imprisonment for a term of six months if the number of plants produced is less than 201 and more than five, and the production is for the purpose of trafficking,

    • (ii) imprisonment for a term of nine months if the number of plants produced is less than 201 and more than five, the production is for the purpose of trafficking and any of the factors set out in subsection (3) apply,

    • (iii) imprisonment for a term of one year if the number of plants produced is more than 200 and less than 501,

    • (iv) imprisonment for a term of 18 months if the number of plants produced is more than 200 and less than 501 and any of the factors set out in subsection (3) apply,

    • (v) imprisonment for a term of two years if the number of plants produced is more than 500, or

    • (vi) imprisonment for a term of three years if the number of plants produced is more than 500 and any of the factors set out in subsection (3) apply;

Production Charge Struck Down

The Brampton man in this Globe and Mail Article successfully brought a constitutional challenge to the six-month minimum jail term for conviction on a production charge for growing between six and 200 marijuana plants for the purposes of trafficking. The man, who pleaded guilty to working in a grow-op, stated that the mandatory minimum was “cruel and unusual punishment” and the judge agreed with his position.

Following the reasoning of a recent Supreme Court decision, the judge stated that it was possible that an individual who has a licence to legally grow marijuana to accidentally grow more than the allotted amount, thereby creating a situation where an honest mistake is criminalized. The judge further stated that attaching a mandatory sentence, that at its minimum, would be six months, is “grossly disproportionate” for dealing with such a situation.

The judge added that a mandatory minimum sentence cannot be served intermittently, which would significantly disrupt an individual’s life, as a continuous six months in jail can greatly affect a person’s social and financial stability. This ruling is a step forward in ensuring equitable results for Ontarians who are facing criminal charges for growing marijuana plants.

Though this ruling only applies in Ontario, it may influence future rulings in other jurisdictions.

 

 

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