Ontario Court of Appeal Declares Minimum Sentences for Marijuana Production Unconstitutional

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In a landmark decision released today, a panel of three Justices of the Ontario Court of Appeal have declared that the minimum sentences for marijuana production contained in the Controlled Drugs and Substances Act (“CDSA”) are unconstitutional.

The case involved three different appeals that were heard together by Justices Simmons, van Rensburg and Nordheimer in November, 2017.  Each case under appeal dealt with sentences that were imposed on different accused after having being convicted of unauthorized production of marijuana under the CDSA.

Section 7(1) of the CDSA prohibits the production of any substance included in the Schedules to the CDSA.  Marijuana (cannabis) is included in one of the Schedules.

The CDSA further sets out a sliding scale of mandatory minimum penalties, ranging from six-months to three-years’ imprisonment, for unauthorized production of cannabis.  The severity of the penalty is tied to the number of plants that are produced and whether any of the statutory aggravating factors set out in the CDSA apply:

(a) six-month mandatory minimum if the number of plants produced is between 5 – 200 and the production is for the purpose of trafficking;

(b) nine-month mandatory minimum if the number of plants produced is between 5 – 200 and the production is for the purpose of trafficking and any of the enumerated aggravating factors apply;

(c) twelve-month mandatory minimum if the number of plants produced is between 201 – 500;

(d) 18-month mandatory minimum if the number of plants produced is between 201 – 500 and any of the enumerated aggravating factors apply;

(e) two-year mandatory minimum if the number of plants produced is more than 500; and

(f) three-year mandatory minimum if the number of plants produced is more than 500 and any of the enumerated aggravating factors apply.

At issue on appeal were the sentences mandated in (c), (e), and (f) above.  The appeal did not engage the sentences mandated in (a), (b) and (d) above and no ruling was made one way or the other as to their constitutionality.

The decision is relatively lengthy and the reasons are nuanced.  However, in short section 12 of the Charter provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment.  A mandatory minimum sentence will constitute cruel and unusual punishment if it is grossly disproportionate to the punishment that would be appropriate, having regard to the nature of the offence and the circumstances of the offender.  In order to meet this test, the sentence must be so excessive as to outrage standards of decency and be disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable.

Using this framework, the panel of three Justices unanimously agreed that the mandatory minimum sentences that were applicable to the accused in their respective cases constituted cruel and unusual punishment and therefore violated section 12 of the Charter.

The ruling is now binding law in the province of Ontario and has persuasive authority in other provinces and territories across the country.  Moving forward it will be interesting to see if (a) the Crown seeks leave to appeal the ruling to the Supreme Court of Canada and (b) how long it takes for a Charter challenge to be brought against the remaining sentencing provisions discussed above, using the current decision as a precedent to try to have those minimum sentences declared in valid as well.

Photo courtesy of thecourt.ca

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