Ontario Courts Reaffirm that Mandatory Minimum Sentences For Cannabis Production Offences are Unconstitutional

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In May 2018, the Ontario Court of Appeal released a landmark decision which declared that minimum sentences for cannabis production contained in the Controlled Drugs and Substances Act (“CDSA”) are unconstitutional.

Since then, a series of court decisions have reaffirmed this ruling, including a decision from earlier this year.

As a refresher, in R v. Vu the Ontario Court of Appeal held that the mandatory minimum sentences for cannabis production under the CDSA violated section 12 of the Charter, which provides the right to be free of cruel and unusual punishment.  For a more detailed discussion of R. v. Vu see our previous post here.

Since the Vu decision, Ontario courts have repeatedly reaffirmed this principle and now proceed to determine appropriate sentences based on a variety of case-specific factors, including the age of the accused, whether the accused is a first time offender and any other relevant circumstances surrounding the offence.

In one case that was heard this past August, the Court of Appeal reconsidered a trial decision which imposed a three year sentence in accordance with the minimum sentencing provisions. On appeal, a panel of three Justices of the Court of Appeal confirmed that the minimum sentences no longer apply and determined that a two year sentence was appropriate in the circumstances.

Most recently, in late January, 2019, the Court of Appeal again reaffirmed that the minimum sentence of three years under section 7(2)(b)(vi) of the CDSA is unconstitutional. The Court of Appeal sentenced the accused to 14 months imprisonment, giving consideration to the sentencing objectives of denunciation and deterrence, as well as the accused’s youth and status as a first time offender.

Notably, courts may still consider the sliding scale of sentencing when the number of cannabis plants produced exceeds a certain threshold. For instance, in a case concerning the production of 3775 marijuana plants, the Ontario Superior Court of Justice considered exceeding 500 plants to  be an aggravating factor as per the threshold set out in sections 7(2)(b)(v) and (vi) of the CDSA. While the Court did not a apply a minimum mandatory sentence, it nevertheless considered the number of plants in its determination. Therefore, while the sliding scale may no longer apply, the underlying factors (i.e. number of plants and the purpose of production) may still be considered in the decision making process.

Recent cases suggest a trend towards a more holistic sentencing approach for the offence of cannabis production. The Court of Appeal has repeatedly made it clear that mandatory minimum sentences are no longer to be applied and courts have imposed lesser sentences than would otherwise be rendered under the CDSA. This may reflect the court’s increased discretion and consideration of mitigating factors and sentencing objectives as they apply to each case.

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