In May 2018, the Ontario Court of Appeal in R v Vu, 2018 ONCA 436 has struck down mandatory minimum sentences (MMS) in relation to the productions of marijuana. Parliament had implemented a sliding scale of MMS for marijuana production offences. The MMS go from 6 months to 3 years imprisonment depending on the number of plants produced and whether there are statutory aggravating factors covered by section 7(3) of the Controlled Drug and Substances Act. The Court found that section 7(2)(b)(iii), (v), (vi) and 7(3)(c) are unconstitutional and violate section 12 of the Charter of Rights and Freedoms to be free of cruel and unusual punishment.
The statutory aggravating factor at play was that the production constituted a potential public safety hazard in a residential area. In finding that section 7(3)(c) of the CDSA was unconstitutional, the Court of Appeal emphasized that the MMS would be increased (in this case) from 2 years to 3 years because the production created a potential public safety hazard in a residential area. To prove this, the crown needed to call expert evidence about the potential safety hazard. The crown does not have to prove that the accused knew about the potential safety hazard. Therefore, an accused could have not known about the safety hazard or could have known and tried to rectify the potential safety hazard and still been subject to the increase of 1 year. The Court of Appeal highlighted the principle that there can be no punishment without fault and stuck down the MMS.
The Court struck also down section 7(2)(b)(iii), (v) and (vi) which provided a sliding scale of sentences for the production of various amounts of plants. In doing this, the Court relied on reasonable hypothetical scenarios where an accused moral blameworthiness would be at the very low end. Some of the hypotheticals included scenarios where an accused that played a very small role in a large-scale operation would be subject to the MMS, for example, someone who is supplying soil or delivering seedlings to a production site.
As more and more MMS are being struck down, Judges are better able to use their discretion to sentence offenders on an individualized basis based on case-by-case scenarios.
